Module Planner LLB (Hons

)

Conflicts of Laws

© Holborn College Ltd 2008 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature without either the written permission of the copyright holder, application for which should be made to Holborn College Ltd, Woolwich Road, Charlton, London SE7 8LN, or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages. The College reserves the right to modify any information contained herein. Produced in January 2008.

Conflict of Laws

Contents
Introduction
Conflict of Laws Syllabus How To Use This Planner Reading List Learning Outcomes 3 3 4 4 5

Part 1
Study Unit One Preliminary Topics and General Principles Study Unit Two Domicile (1) – Domicile of Origin; Domicile of Choice Study Unit Three Domicile (2) – Abandonment of Domicile of Choice; Domicile of Dependency Study Unit Four Jurisdiction (1) – Competence of the English Courts Under the Traditional Rules Study Unit Five Jurisdiction (2) – Defendant Domiciled in the EC – Civil Jurisdiction and Judgments Act 1982 Study Unit Six Jurisdiction (3) – The Staying of Actions – Injunctions to Restrain Foreign Proceedings Study Unit Seven Foreign Jurisdiction Clauses Recognition and Enforcement of Foreign Judgments (1) – The Traditional Rules Study Unit Eight Recognition and Enforcement of Foreign Judgments (2) – The Defences Under Statute to the Traditional Rules 41 36 30 24 19 13 9 6

1

Conflict of Laws Study Unit Nine Recognition and Enforcement of Foreign Judgments (3) – The Rules of the Brussels Regulation (and Brussels and Lugano Conventions) 44 Part 2 Study Unit Ten Choice of Law Process – Characterisation and Renvoi Study Unit Eleven Contract (1) – Introduction – the Applicable Law Study Unit Twelve Contract (2) – Limits on the Role of the Applicable Law – Creation of the Obligation Study Unit Thirteen Contract (3) – Formal Validity – Capacity – Illegality – Other Matters Affecting Obligation 63 58 54 49 Revision and Examination Technique 68 2 .

Conflict of Laws Introduction Conflict of Laws Although. this module will look at some of the situations where English court will apply the law of a foreign country. Syllabus a) b) The nature of private international law Fundamental conceptions: classification. 3 . c) Connecting factors. Suppose. and what it should do if a foreign court has already heard the case. time factor. Thus. d) The rules relating to the jurisdiction of Engish courts in cases involving a foreign element. for example. in these circumstances. interpretation. the incidental question. that English law should govern the interpretation and performance of this contract. evasion of the law. that a German man who makes a contract in England with a Frenchman. it may seem unusual that English courts should apply not English law. It would probably be unfair. renvoi. but the law of a foreign country in order to resolve a dispute before it. discharge. illegality. e) The principles of English private international law relating to Contracts: form. at first thought. the performance of which is to take place in Spain and Portugal. f) Procedure and evidence: proof of foreign law: recognition and enforcement of foreign judgments and decrees. public policy. Staying foreign actions: the forum non conveniens doctrine. It will also consider whether English court should be trying the case at all. a moments reflection on the possible scenarios that a court may be faced with will soon reveal that this situation is actually not as peculiar as it initially seems. in particular domicile and habitual residence comparison with nationality.

and the two should be used together. The Course Planner and the college textbook are linked. McClean (6th edition) 2005 (Sweet & Maxwell) Cheshire and North: Private International Law. This list is correct at the time of going to press. Morris and Collins on the Conflict of Laws. The introduction will give you a brief overview of the subject areas to be studied. while you learn each individual topic. The ‘study units’ each contain a topic within the subject as a whole. Briggs and Rees (4th edition) 2005 (LLP) Please note that books may have new editions published during the life span of this Planner. Reading List a) Prescribed reading : Clarkson and Hill The Conflict of Laws. Briggs 2002 (Oxford) (good for preliminary overview of the subject) d) For reference: Foreign Law in English Courts: Pleading. completing the reading listed and any questions/interrograms that have been set. North and Fawcett (13th edition) 1999 (Butterworths) c) It would be useful to obtain the following book: Conflict of Laws. 3rd edition. rather than as a series of isolated parts. Proof and Choice of Law. It is important to remember. (Oxford) b) Further reading: Morris: The Conflict of Laws. Fentiman 1998 (Oxford University Press) Dicey. You should work through each study unit in order.Conflict of Laws How to Use this Planner This Course Planner is intended to be the basis of your work on this module. Collins (14th edition) 2006 (Sweet &Maxwell) Civil Jurisdiction and Judgments. d) Reference to Journals 4 . that the areas all relate to one another and you should look at the subject as a whole. The Course Planner has been divided into a number of ‘study units’ which you will progress through in order.

the learning outcomes for that particular study unit. – the way in which the law governing a contract is determined. and have reached. you should understand: – the nature of conflict of laws and the underlying conceptual issues. 5 . Remember that the subject must always be looked at as a whole: if you do not understand what the learning outcomes refer to. You should not progress from one study unit to the next until you understand. you should go back to the learning outcomes and ensure that you understand the topics to which they refer.Conflict of Laws BYBIL CLJ British Year Book of International Law Cambridge Law Journal Harv L Rev HarvardLaw Review ICLQ JBL LQR LS LS Gaz MLR NLJ SJ International and Comparative Law Quarterly Journal of Business Law Law Quarterly Review Legal Studies Law Society’s Gazette Modern Law Review New Law Journal Solicitors’ Journal Learning Outcomes Each study unit contains a number of learning outcomes: these are intended to guide you in your study of each topic. – the differences between common law and European approaches to jurisdiction (and the interrelation between these approaches). Once you have completed the reading for each study unit. – issues of forum conveniens. At the end of the module. you will need to repeat your reading. – the processes of recognition and enforcement of foreign judgments.

Collier (– Relevant Chapter(s)) Learning Outcomes a) b) c) To have examined the nature and scope of conflict of laws.Conflict of Laws Part 1: Study Unit One Topic Preliminary Topics and General Principles Prologue This unit will introduce you to the fundamental principles which govern the conflict of laws. Other Reading Morris:The Conflict of Laws . Essential Reading Clarkson and Hill. to have understood the meaning of comity and to have had a brief look at the history of the subject. so that you have a good grasp of the basics before progressing further with your studies. chapter 1. Morris and North – (Relevant Chapter(s)) Cheshire and North: Private International Law . To have become familiar with terminology. Note: most of the topics your will read about will be covered in greater depth later. 6 . It is important at this stage that you complete your reading and gain a good understanding of the nature of the topic as a whole. Briggs (– Relevant Chapter(s)) Conflict of Laws . North and Fawcett – Relevant Chapter(s) The Conflict of Laws . To have distinguished between public and private international law.

lex domicilii. What is the difference between private and public international law? What is meant by ‘country’? Do all countries share the same conflict of laws rules? Explain the doctrine of comity and the role it has played in the development of conflict of laws. 3. 5. juridical concepts or categories. lex situs. lex loci solutionis. lex loci delicti. 6. 2. [1995] 3 All ER 694 (HL) Kuwait Airways Corporation v Iraqi Airways Company (1998) The Times 12 May Republic of Somalia v Woodhouse Drake and Carey (Suisse) SA [1993] QB 54 Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821 (QBD) Interrograms 1. localising or connecting factors. lex causae. lex loci celebrationis. 4.Conflict of Laws Sources of Law Case Law PUBLIC INTERNATIONAL LAW AND THE CONFLICT OF LAWS Al Adsani v The Government of Kuwait (1996) 107 ILR 536 (HL) Kuwait Airways Corporation v Iraqi Airways Company [1995] 1 WLR 1147. lex fori. What are the sources of English conflict of laws? Explain: a) b) c) d) e) f) g) h) i) j) 7. lex successionis. What should determine the connecting factor? 7 .

where they do. but Edward is a New Zealand exporter in Auckland and the contract is made by telex. b) As (a). g) Philip. c) Paul writes a letter to The Times making a strong attack on the integrity of a Brazilian politician. Do you think that the following cases contain a significant foreign element and. an English lorry-driver. but Jeanne has only lived in England for two weeks and she and her future husband intend to live in France. is killed in an accident in Scotland. f) As (e). cannot speak English. who is about to marry in a London register office.Conflict of Laws Question 1. d) e) Paul sends a similar letter to a Rio de Janeiro newspaper. would it be unsatisfactory to apply English law as the lex fori? a) Jeanne. 8 . James and Edward contract in London for the import of fruit from New Zealand to England.

and as such tends to be an artificial concept rather than a physical fact. Collier – Relevant Chapter(s) The Conflict of Laws . Essential Reading Clarkson and Hill. like ‘legal personality’.Conflict of Laws Part 1: Study Unit Two Topic Domicile (1) – Domicile of Origin. b) c) To have examined the concept of domicile in the English sense. 9 . chapter 2. This concept provides a link between an individual and a place. is a legal concept created by the law and serving the law’s purposes. Briggs – Relevant Chapter(s) Learning Outcomes a) To have examined the concept of 'permanent home' and the numerous qualifications to it. McClean – Relevant Chapter(s) Cheshire and North: Private International Law . Domicile of Choice Prologue ‘Domicile’. Other Reading Morris: The Conflict of Laws . North and Fawcett – Relevant Chapter(s) Conflict of Laws . allowing the law governing at that linked place to be be held applicable to that individual. To have examined the functional diversification of the concept of domicile.

Re [1893] 3 Ch 490 Bell v Kennedy [1868] LR 1 Sc & Div 307 Donaldson v Donaldson [1949] P 363 Fuld (No 3). Re [1947] 1 Ch 695 Mark v Mark [2005] 3 WLR 111 (HL) Martin. Re [1900] P 211 May v May [1943] 2 All ER 146 Moorhouse v Lord [1863] 10 HL Cas 272 Plummer v IRC [1988] 1 WLR 292. Re [1926] Ch 692 Beaumont. [1988] 1 All ER 97 Puttick v Attorney-General [1980] Fam 1. Re [1980] 3 All ER 838 Henderson v Henderson [1967] P 77 IRC v Bullock [1976] 1 WLR 1178 (CA) Lloyd Evans (deceased). especially s3 Case Law Annesley. In the Estate of [1968] P 675 Furse.Conflict of Laws Sources of Law Statute Domicile and Matrimonial Proceedings Act 1973. [1979] 3 All ER 463 Ramsay v Liverpool Royal Infirmary [1930] AC 588 Udny v Udny (1869) LR Sc & Div 441 White v Tennant (1888) 8 SE 596 (USA) Winans v Attorney-General [1904] AC 287 (HL) Articles Fentiman ‘Domicile Revisited’ [1991] CLJ 445 Hartley and Karsten ‘The Domicile and Matrimonial Proceedings Act 1973’ (1974) 37 MLR 179 Wade ‘Domicile: a Re-evaluation of Certain Rules’ (1983) 32 ICLQ 1 10 .

Conflict of Laws Interrograms 1. f) intention to stay. 7. intention to reside for the time being. contingent intention eg intention to reside until the happening of some event. For what purposes is domicile used? Where does the burden of proof lie when a change of domicile is asserted? What is the standard of proof? 3. intention to reside for the foreseeable future. intention to reside until the other spouse dies. Is a change of nationality relevant to a change in domicile? 11 . Is the concept of ‘domicile’ easy to define? What is the domicile of origin? What is its importance? How is the domicile of origin of the following persons ascertained? A person with: a) b) c) d) e) intention to reside indefinitely. France. 6. USA. How important is the length of actual residence? Do members of the armed forces receive ‘special treatment’ in considering their attempts to acquire new domiciles? 10. Scotland. Are the following domiciles possible? a) b) c) 4. 5. 2. Why did Winans succeed in Winans v A-G whereas Ramsay in Ramsay v Liverpool did not? 8. 9.

She secretly (and illegally) enters England and marries Modred. 1975 and 2001. 'By domicile we mean home. he does not return to Canada. but buys a farm in Kent. He is now 85. but by this time the farm is thriving and Richard now intends only to return to Canada when he is unable to lead an active life on the farm. 12 .' Discuss. Malia. Advise Morgana. born in Canada and domiciled there for the first 20 years of his life. though it is widely known that Richard (who is a year older than Kay) plans to return to Canada if Kay predeceases him. Morgana. the permanent home. moves to England in order to take up a post with Skegg & Co. Richard. In 1970. They set up home together and when the English authorities attempt to deport her as an undesirable alien Morgana argues that her marriage indicates that she has changed her domicile to that of England. domiciled and resident in her country of origin. Consider the domicile of Richard in: 1950. who refused ever to leave England permanently. is the perpetrator of several terrorist offences and is eagerly sought by the authorities of Malia. Kay dies in 1989. In 1950. though because of Kay's wishes. he marries Kay. Richard is made redundant. 3. an English domiciliary.Conflict of Laws Questions 1. 2. He does not intend to remain in England for the rest of his life and tells his friends as much.

To have examined the domicile of minors. To have examined alternatives. Re (1921) 182 NW 227 13 . Domicile of Dependency Prologue Varying factors will determine an individual’s domicile. Also: a) b) c) d) To have examined abandonment of domicile. 3 and 4 Case Law Note: See also the cases listed in Domicile (1). Reading See the reading listed in Domicile (1). ABANDONMENT OF DOMICILE OF CHOICE Jones. and does. domicile can. Learning Outcomes See Domicile (1). and there are certain situations whereby domicile will be automatically imposed on individuals until such time as they elect to alter it.Conflict of Laws Part 1: Study Unit Three Topic Domicile (2) – Abandonment of Domicile of Choice. Sources of Law Statute Domicile and Matrimonial Proceedings Act 1973: ss1. Furthermore. To have examined the domicile of dependency. lunatics and corporations. as we have already seen. alter throughout an individual’s lifetime.

[1982] 1 All ER 784 MINORS Beaumont. Re [1966] NZLR 1028 Henderson v Henderson [1967] P 77 LUNATICS AND CORPORATIONS Gasque v IRC [1940] 2 KB 80 ALTERNATIVES Cruse v Chittum [1974] 2 All ER 940 (habitual residence) Ikimi v Ikimi [2001] 2 FCR 385 (having more than one habitual residence at the same time) R v Barnet London Borough Council.Conflict of Laws Lloyd Evans (deceased). Re [1893] 3 Ch 490 G. 30 Law Commission Working Paper No 88 (1985) and Report No 168 (1987) Rogerson ‘Habitual Residence:The New Domicile’ (2000) 49 ICLQ 86 14 . ex parte Shah [1983] 2 AC 308 Articles and Reports Carter ‘The Case for Radical Reform’ (1987) 36 ICLQ 713 Gordon ‘Reform of the Law of Domicile’ [1988] LS Gaz 27 Apr. Re [1947] 1 Ch 695 Raffenel. In the Goods of (1863) 3 Sw & Tr 49 DOMICILE OF DEPENDENCY Gray v Formosa [1963] P 259 IRC v Duchess of Portland [1982] Ch 314.

What is the effect of s1 of the DMPA 1973? What is the effect of s1 in the following situations: a) b) 8. parents married. validly contracts marriage abroad at the age of 14. 2. How is a domicile of choice abandoned? On the abandonment of a domicile of choice. but married subsequently. must a new domicile of choice be acquired? 3. What is the doctrine of revival? What problems can it give rise to? Compare the abandonment of a domicile of choice with that of a domicile of origin. then moves to live with aunt. but child then goes to live with aunt. 10. parents married. but child divorces wife at 15. Does the DMPA preclude a married woman from ever acquiring her husband’s domicile? 9. living together with child. h) as in (g). 4. 15 . to a domiciled Scotsman in 1972. living together with child. as in (d). as in (d). At what age can a minor acquire a domicile of choice? Upon whose domiciles are the following children dependent: a) b) c) d) e) f) g) parents married. but child goes to live with father. but separated. parents unmarried at birth of child. parents unmarried. child leaves home. 6. 7. What is the position of married women as regards acquisition of domiciles? Compare their position with that in 1970. to a domiciled Frenchman in 1975. child lives with mother.Conflict of Laws Interrograms 1. 5.

where she purchased a house and decided to remain there providing she could learn to speak Swedish. He boarded a ferry. Alice has now settled down in Sweden and is part of the community there. except for the years 1941 to 1946. but just after it had left Dutch territorial waters. they went to Ghana. when her mother brought her to England to escape the German occupation of the Netherlands. However her presence was discovered by the authorities and she was deported from Canada. died in hospital a week later. but Agnes entered Ontario in October 1979 on a visitor's visa valid for six months. Bob and Alice. being unhappy about the political situation in Rhodesia. where she was living for good. In 1975. Bob. who was one of those passengers. was born there. Trace the domiciles of: a) b) Bob. In 1995 Paul left school and found employment in France where he decided to live. intending to remain there permanently.Conflict of Laws Questions 1. Agnes left Robert and went to live permanently in Rhodesia. a number of passengers fell ill from food poisoning and the ferry returned to Holland. 16 . Agnes was born with a domicile in the Netherlands in 1940. In 1978. since Robert had been sent there by his employers to manage their office there. Alice decided that she had spent long enough in Eire and left for Sweden. she sought permission to settle in Canada. in Eire taking Paul with her. 2. but Alice refused to follow him and went to live in 1987. In December 1984 Bob moved to Holland on the orders of his employers. Alice. She remained there after the visa had expired and decided to remain in Ontario. In 1990 Bob decided to leave Holland for good and move to Scotland. In 1990 Paul was sent to boarding school in England. a married couple domiciled in New York. In April 1978. She lived there until 1970. In 1993. She is now in England but she still wants to live in Ontario. Trace Agnes' domicile since 1940. a son Paul. having begun a job as an interpreter last month. a Scottish domiciliary and in 1972. Her application was refused by the Canadian Immigration authorities. In 1970 she married Robert. emigrated to Canada in 1965 and settled in Quebec.

as seems to be the case. But later that same day Edna gave birth to a son. In 1958. Andy came to England in search of work. Candy was born in Jamaica to parents both of whom were then domiciled in Jamaica. the legitimate child of Candy and Andy. For the first six months. whom she had conceived by Bill some months before the wedding. married Bill a domiciled Englishman. Candy's parents together with Candy and her sister. Trace Mandy's domicile birth to the present day on the following set of facts: Mandy was born in January 1980 in Scotland. Andy has two children by his previous marriage who live with him. 4. Candy met and married Andy. 17 . Candy wandered round from state to state.Conflict of Laws c) Paul. a domiciled Irishwoman. emigrated to England. In 1970. When Mandy was six months old. Candy obtained the necessary visas by telling lies about her qualifications and so entered the United States illegally. In April 1990 Edna. He has been very successful in his work and has acquired substantial property in England. 'If it is accepted. In January 1992 Edna sent Tim to live permanently with her sister Mary in Hong Kong where Mary and her husband lived and were domiciled. Edna decided not to go there and took Tim and went to live with her mother in Scotland. Tim. Andy was born in Scotland in 1940 to parents both of whom were then domiciled in Scotland. in a ceremony in Dublin. Bill died on 1st January 1991.' Discuss. Sandy. 5. In 1978. Trace Tim's domicile since his birth. Candy decided to go to seek her fortune in America and to leave Mandy with her sister. intending to leave with him for England that evening. that the present domicile rules can be subjected to wide-ranging criticism. but in January 1981 she found a permanent job in New York where she has lived ever since. the question has to be asked whether the use of domicile should be abandoned in favour of some other connecting factor. Andy would like to return to Scotland when he retires but he would also like to live near his children. throughout their lives to the present day. He found a job in England which he has held ever since. Bill went to England in August 1990. 3.

Trace the changes in the domicile of Alan on the following set of facts: Alan was born in France in 1914 to Nicole. 6. an unmarried French domiciliary. Alan was brought up by his grandparents but occasionally visited his parents in England. chastity and obedience and disposing of all his property. decided to spend the remainder of his life where a warmer climate might alleviate his physical suffering. all Alan's requests were rejected. Accordingly. At the age of 20. Nicole left Alan with his French grandparents and rejoined Jock in England where they subsequently married and established their matrimonial home.Conflict of Laws Mandy has continued to live with her aunt in Scotland and has never seen Andy. was a soldier in the British Army serving in France. In 1946. 18 . assured by his doctor that he had only a few months to live. taking vows of poverty. Alan contracted cancer and retired from active work. Earlier this year Alan. Alan became a parish priest in England and served as a priest for the next 30 years in England. his father. domiciled in Scotland. Alan escaped to England and served as chaplain to the Free French forces in England during the war. Jock. During those years Alan often expressed the wish to return to France and occasionally requested the Head of the missionary order to find him a post in France. When German forces invaded France in 1940. three months ago Alan went to a seminary of the missionary order in Spain where last week he died. In 1918. In 1976. Alan joined a French missionary order and became ordained as a priest. However.

McClean – Relevant Chapter(s) Cheshire and North: Private International Law . 19 . To have examined the operation of CPR 6(III). Briggs and Rees – Relevant Chapter(s) Learning Outcomes a) b) c) To have examined the jurisdiction of English courts over parties and causes.Conflict of Laws Part 1: Study Unit Four Topic Jurisdiction (1) – Competence of the English Courts Under the Traditional Rules Prologue There are certain disputes which are so far removed from the English legal system that English law denies the courts the right to adjudicate them. To have examined service of claim forms inside and outside jurisdiction. North and Fawcett – Relevant Chapter(s) The Conflict of Laws . despite the fact that English courts can generally decide cases applying foreign law. Other Reading Morris: The Conflict of Laws . Collier – Relevant Chapter(s) Civil Jurisdiction and Judgments . We shall now consider what limits are placed on the courts in deciding whether or not they can hear certain disputes: what are the limits of the English courts’ jurisdiction? Essential Reading Clarkson and hill. chapter 3. Briggs – Relevant Chapter(s) Conflict of Laws .

[1983] 2 All ER 884 (HL) Attock Cement Company Ltd v Romanian Bank for Foreign Trade [1989] 1 All ER 1189 (CA) Siskina. The [1974] AC 436. The [1979] AC 210.Conflict of Laws Sources of Law Statutes Foreign Corporations Act 1991 CPR 6 Part III Case Law EFFECT OF S34 CJJA 1982 Black v Yates [1991] 3 WLR 90 SUBMISSION BY CLAIMANT Arab Monetary Fund v Hashim [1991] 2 WLR 729 (HL) Atlantic Star. [1977] 3 WLR 818 20 . [1989] 2 All ER 398 (HL) Maharanee of Baroda v Wildenstein [1972] 2 QB 283 Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1993] 3 WLR 756 (HL) South India Shipping Corpn Ltd v Export-Import Bank of Korea [1985] 1 WLR 585. [1973] 2 All ER 174 Bumper v Metropolitan Police Commissioner [1991] 1 WLR 1362 (CA) Hatrex International Transport Case C398/92 [1994] IL Pr 264 SERVICE OF A CLAIM FORM UPON A DEFENDANT WITHIN THE JURISDICTION Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506. [1985] 2 All ER 219 SUBMISSION BY THE DEFENDANT Dulles’ Settlement (No 2). Re [1951] Ch 842 Feyerick v Hubbard (1902) 71 LJKB 509 CPR 6 Amin Rasheed Corpn v Kuwait Insurance Co [1984] AC 50. [1983] 3 WLR 241.

[1949] 1 All ER 294 MB Pyramid Sound NV v Briese Schiffarts GmbH & Co [1993] 2 Lloyd’s Rep 192 Witted v Galbraith [1893] 1 QB 577 CPR 6. [1983] 2 All ER 884 (HL) Brinkibon Ltd v Stahag Stahl [1982] 2 AC 34 (HL) Entores v Miles Far East Corp [1955] 2 QB 327 (HL) Gulf Bank KSC v Mitsubishi Industries (1993) The Times 24 August Mackender v Feldia [1967] 2 QB 590 Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.20(8) TORT Berezovsky v Forbes Inc (1998) The Times 27 November (CA) Bier v Mines de Potasse [1978] QB 708.Conflict of Laws Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. [1989] 3 All ER 14 CPR 6.20(2) INJUNCTIONS Babanaft International Co v Bassatne [1989] 2 WLR 232 (CA) Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391.20(5) CONTRACT Amin Rasheed Corpn v Kuwait Insurance Co [1984] AC 50. [1976] ECR 1735 Articles Capper ‘Worldwide Mareva Injuntions’ (1991) 54 MLR 329 Collier ‘Of Temples:Bumper Development Corporation v MPC’ [1992] CLJ 31 21 . [1986] 3 All ER 843 (HL) (per Lord Goff) CPR 6. [1986] 3 WLR 972. [1986] 3 All ER 843 (HL) (per Lord Goff) CPR 6.20(6) BREACH OF CONTRACT Johnson v Taylor [1920] AC 144 Oppenheimer v Rosenthal [1937] 1 All ER 23 CPR 6. The [1949] AC 326. [1986] 3 WLR 972. [1983] 3 WLR 241.20(3) NECESSARY AND PROPER PARTY Brabo.

Is there one single approach to determining the place (locus delicti) where a tort has been committed? Should there be? 9. 4.Conflict of Laws Epp ‘World-wide Mareva Injunctions in Common Law Canada’ (1996) 59 MLR 460 Marston ‘The Arab Monetary Fund: Legal Person or Creature from Outer Space?’ [1991] CLJ 218 Marston ‘The Personality of the Foreign State in English Law’ [1997] CLJ 374 Perkins ‘AGood Arguable Case About What? Seasconsar Far East Ltd v Bank Markazi etc’ [1994] CLJ 244 Stone ‘The Civil Jurisdiction and Judgments Act 1982: Some Comments’ (1983) 32 ICLQ 477 Interrograms 1. 3. 2. Can the High Court exercise its power under CPR 6 to grant leave to serve out for a Mareva injunction? When is the High Court likely to allow service out of jurisdiction under sub-head (b)? 10. When may the English courts take jurisdiction in an action in personam? When may the English courts take jurisidiction in an action in rem? How may the service of a claim form in rem lead to proceedings in personam? In what way are the traditional rules of jurisdiction exorbitant? What safeguards against such exorbitant methods exist under statute? On what basis will the High Court exercise its assumed jurisdiction under CPR 6? Why is this jurisdiction exercised with care? 7. 6. In what circumstances will the courts grant leave to serve a claim form under CPR 6 in cases involving contractual disputes? 8. What constitutes submission? 22 . 5.

A. Charles wishes to bring proceedings against various parties in relation to various contracts he concluded with them. domiciled in Ontario but Charles has invited him to stay with him in April of this year. if in the action begun by writ. Does the common law give English courts excessive jurisdiction? Or insufficient jurisdiction? 23 . a Bulgarian company sold and delivered to B. X purchased the drug from B in England and after taking it. which owns a group of chemist shops and pharmaceutical retail outlets. Will the court permit X to do so? 3. a company incorporated in Ruritania who conduct their main business in Ruritania but they have an office in London merely to provide information to the public in general. d) Y & Co Ltd.Conflict of Laws Questions 1. B is in liquidation and X now brings an action for negligence against A and seeks to serve notice of the writ on A. 2. c) X & Co Ltd. suffered severe injuries. a drug manufactured and packaged by A in Bulgaria. a company incorporated in Urbania with no office in this country but the contract was concluded in London between Charles and an agent of X & Co Ltd. an English company. a company incorporated in Russia with no office or location in this country but the contract was concluded in Moscow to be performed by both parties in Bristol. Under a contract made in Bulgaria and governed by Bulgarian law. 4. 'The court may assume jurisdiction over an absent defendant. A negligently failed to warn B or prospective customers that the drug was dangerous unless certain precautions were taken in using it. Advise him what he must do if the other party is: a) A & Co. b) Attila. an injunction is sought ordering the defendant to do or refrain from doing anything in England. Discuss what limits there are to this jurisdiction.' (Dicey & Morris).

Conflict of Laws

Part 1: Study Unit Five
Topic
Jurisdiction (2) – Defendant Domiciled in the EC – Civil Jurisdiction and Judgments Act 1982

Prologue
In this unit, we will analyse the rules relating to jurisdiction as governed by ‘EC’ family of instruments, mainly Regulation 44/2001/EC but also the Brussels and Lugano Conventions. Generally, where a defendant is domiciled in an ECcountry, the court of that country, and not others, will have jurisdiction.

Essential Reading
Clarkson and Hill, chapter 3.

Other Reading
Morris: The Conflict of Laws , McClean – Relevant Chapter(s) Cheshire and North: Private International Law , North and Fawcett –
Relevant Chapter(s)

The Conflict of Laws , Briggs – Relevant Chapter(s) Conflict of Laws , Collier – Relevant Chapter(s)

Learning Outcomes
See Jurisdiction (1). Also: a) To have examined the Brussels and Lugano Conventions in outline, especially arts 5(1) and 16(1). b) To have examined Regulation 44/2001/EC.

24

Conflict of Laws

Sources of Law
Statute
Civil Jurisdiction and Judgments Acts 1982 and 1991

Case Law
Bier BV v Mines de Potasse D’Alsace 21/76 [1978] QB 708; [1976] ECR 1735 Blanckaert & Willems v Trost 139/80 [1981] ECR 819 Boss Group Ltd v Boss France SA [1996] 4 All ER 970 (CA) De Bloos v Bouyer 14/76 [1976] ECR 1497; [1977] 1 CMLR 60 De Cavel v De Cavel [1979] ECR 1055 Denilauler v SNC Couchet Frères 125/79 [1981] ECR 1553; [1981] 1 CMLR 62 Dresser (UK) Ltd v Falcongate Freight Management Ltd and Others [1992]QB 502; [1992] 2 All ER 450 (CA) Elefanten Schuh GmbH v Jacqmain 150/80 [1981] ECR 1671 Effer v Kantner 38/81 [1982] ECR 825; [1984] 3 CMLR 667 Gascoine v Pyrah [1994] IL Pr 82 (CA) Grupo Torrar SA v Sheikh Fahad Mohammed al Sabah [1996] 1 Lloyd’s Rep 7 Henderson v Jaouen and Another [2002] 1 WLR 2971 (CA) Ivenel v Schwab 133/81 [1982] ECR 1891; [1983] 1 CMLR 538 Jordan Grand Prix Ltd v Baltic Insurance Group [1999] 2 AC 127 (HL) Kalfelis v Schroder 189/87 [1988] ECR 5565 Kleinwort Benson v Glasgow CC [1997] 3 WLR 923; [1997] 4 All ER 641 (HL)) Marinari v Lloyds Bank plc [1996] 2 WLR 159; [1996] All ER (EC) 84 (ECJ) Minster Investments Ltd & Others v Hyundai Precision & Industry Co Ltd & Another [1988] 2 Lloyd’s Rep 621 Overseas Union Insurance Ltd v New Hampshire Insurance Company Case C351/89 [1991] ILPr 495; [1992] QB 434 Owens Bank v Bracco (No 1) [1992] 2 AC 443; (No 2) [1994] 2 WLR 759; [1994] 1 All ER 336 (ECJ) Owusu v Jackson (C–281/02) [2005] 2 WLR 942 (ECJ) Pearce v Ove Arup Partnership Ltd [1997] 2 WLR 779; [1997] 3 All ER 31

25

Conflict of Laws

Republic of Haiti & Others v Duvalier and Others [1989] 2 WLR 261 CA Rosler v Rottwinkel 241/83 [1986] QB 33 Sanders v Van der Putte 73/77 [1977] ECR 2383 Sarrio SA v Kuwait Investment Authority (1997) The Times 17 November (HL) Shenavai v Kreischer Case 266/85 [1987] ECR 239; [1987] 3 CMLR 782 Shevill v Presse Alliance SA [1996] 3 All ER 929 (HL) Speed Investments Ltd v Formula One Holdings (No 2) [2005] 1 WLR 1936 (CA) Tessili v Dunlop 12/76 [1976] ECR 1473 The Tatry [1995] 1 Lloyd’s Rep 302; [1995] All ER (EC) 229 (ECJ) Turner v Grovit [2002] 1 All ER 960 (HL) Webb v Webb Case C294/92 [1994] IL Pr 389; [1994] 3 WLR 801 (ECJ)

Zelger v Salinitri Case 56/79 [1984] ECR2397

Articles and Reports
Briggs ‘Trusts of Land and the Brussels Convention: Webb v Webb’ (1994) 110 LQR 526 Briggs ‘The Brussels Convention reaches the House of Lords’ (1992) 108 LQR 186 Collier ‘The Surprised Bank Clerk and the Italian Customer – Competing Jurisdictions’ [1996] CLJ 216 Collins ‘The Legacy of The Siskina’ (1992) 108 LQR 175 Collins ‘Negative Declarations and the Brussels Convention’ [1992] 109 LQR 545 Collins ‘The Siskina Again: An Opportunity Missed’ (1996) 112 LQR 8 Davenport ‘Forum Shopping in the Market’ (1995) 111 LQR 366 Fentiman ‘The Tatry’ (1995) CLJ 261 Forsyth ‘Shevill v Presse Alliance’ [1995] CLJ 515 Rogerson ‘English Interference in Greek Affairs: Continental Bank v Aeakos Campania

Naviera SA’ [1994] CLJ 241
Rogerson ‘Equity, Rights in rem and the Brussels Convention: Webb v Webb’ [1994] CLJ 462

26

What role does the European Court of Justice play in relation to the Regulation and how is a referral to it made? 27 . Explain the provisions on prorogation of jurisdiction under the Regulation. employment and consumer contracts. 2. How has the Regulation been adapted for the allocation of jurisdiction within the UK? 11. 5. What is general jurisdiction under the Regulation? What is special jurisdiction under the Regulation and when is it applicable? Describe the rules under the Regulation relating to insurance. 9. What is ‘exclusive jurisdiction’ and what is its relationship to special and general jurisdiction? 7.Conflict of Laws Jenard Report (on the Brussels Convention of 1968) Schlosser Report (on the Accession Convention of 1978) Smart ‘Safeguarding Assets in International Litigation’ (1996) 112 LQR 397 Interrograms 1. 10. 4. In what cases does Regulation 44/2001/EC apply? How is the concept of domicile under the 1982 Act different from the common law concept? 3. 8. 6. What is the effect of art 24 and is it subject to any conditions? Outline the effects of the 1982 Act and the Regulation on CPR 6.

comes to the UK to attend an English course lasting one month in a London College. What effect have art 31 and s25 had on the House of Lords decision in The Siskina and what is the present position for a plaintiff seeking such protective provisional measures against a defendant? 3. makes a remark in a broadcast which Peter. Describe the effects of these events on Philip's domicile as it is to be determined for the purposes of the jurisdiction of British courts. a Belgian domiciliary signs an agreement for the month of September. He completes this course successfully and then takes a job in Northern Ireland. Advise him. 4.Conflict of Laws Questions 1. Bertie flies over to see Xavier and Xavier hits Bertie over the head. Xavier refuses to pay the rent agreed under the agreement to Bertie. Bertie now wishes to bring proceedings against both Francis and Xavier in England. he wishes to let the villa to other people for the rest of the summer. causing Bertie to suffer a head injury. then decides not to retake it but to do a two months' marketing course in London instead. who lives in England. 28 . Francis. Explain the differences between the common law rules of jurisdiction and the Regulation rules. Philip. Bertie owns a villa in the South of France. 5. 2. Bertie has an argument with Francis and Francis refuses to move out of the villa claiming that the agreement was void and therefore Francis has squatter's rights. Consider whether the English courts would have jurisdiction in each of the following cases: a) Daniel. He wants to ensure that any agreement he reaches with a prospective tenant will be subject to English law and the English courts so he places in the agreement a clause stating that any dispute will be tried in the High Court in London and that the agreement will be governed by English law. As Bertie can only spend the month of July at the villa. He fails the exam at the end of the course and goes to Scotland for a month's revision before retaking the exam. an Italian. Xavier an English domiciliary signs an agreement with Bertie for the month of August. a broadcaster on Radio Luxembourg who lives in Luxembourg.

Dacapo fails to pay and Patti wishes to sue it. c) Pat agrees to work for Dachshund AG. d) Patti. The broadcast was in English and was intended to be heard mainly in England. Advise Pierre in the following alternative situations: a) Pierre wishes to sue Dan in England for breach of contract. it is payable in England. a US national resident in New York. appoints Paul as its exclusive dealer in Britain and Ireland. is entitled to a commission. Dan failed to deliver the goods. for the delivery of goods by Dan to Pierre's place of business in France. though an employee. The contract contains a choice-of-law clause in favour of German law. The work is done at Patti's studio in London and will be used for advertising in England. under English law it is payable in England. b) In the contract betweenPierre and Dan there is a clause providing that any dispute between the parties should be referred to the Belgian court in Brussels. Dan has recently become resident in England and Pierre wishes to sue him in the English court. a German company. an English commercial artist. contracted with Dan. Peter wants to sue Daniel and Radio Luxembourg for defamation. an Italian cosmetics firm. 6. While Dan is staying overnight at Heathrow Airport Hotel (because the plane he was travelling on was found to have engine trouble when it stopped to refuel in London)Pierre serves a claim form on him. The contract contains a choice-of-law clause in favour of Italian law. a French national resident in France. What difference would it make in (b) if the contract had provided for disputes to be resolved by the court in Geneva? 29 . as their sales representative. Under German law this is payable in Germany. a French company. Patti's fee is payable in Italy. Pat. Paul wants to sue Dandy for breach of contract. does artwork for Dacapo. Pierre. b) The Dandy company. under English law.Conflict of Laws regards as defamatory. The company fails to pay the commission and Pat wants to sue for it. Paul later discovers that they have also been supplying another dealer in England.

chapter 3. McClean – Relevant Chapter(s) Cheshire and North: Private International Law . 30 . or will not be able to exercise that jurisdiction. c) To have examined the law of injunctions restraining foreign proceedings.Conflict of Laws Part 1: Study Unit Six Topic Jurisdiction (3) – The Staying of Actions – Injunctions to Restrain Foreign Proceedings Prologue Even though a court may have determined that it has jurisdiction to adjudicate a case. which we shall examine in this unit. Collier – Relevant Chapter(s) Learning Outcomes See Jurisdiction (1) and (2). Also: a) b) To have examined staying actions under Regulation 44/2001/EC To have examined the concept of forum non conveniens. Briggs – Relevant Chapter(s) Conflict of Laws . the history of the doctrine and its application. there are situations where it will choose not to exercise that jurisdiction. Essential Reading Clarkson and Hill. Other Reading Morris: The Conflict of Laws . North and Fawcett – Relevant Chapter(s) The Conflict of Laws .

Conflict of Laws Sources of Law Statutes Regulation 44/2001/EC. [1997] 4 All ER 335 (HL) De Dampierre v De Dampierre [1988] AC 92 Donoghue v Armco Inc and Others [2002] 1 All ER 748 (HL) Du Pont v Agnew (No 2) [1987] 2 Lloyd’s Rep 585 Harrods. [1987] 1 QB 689 British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368 Castanho v Brown and Root [1981] AC 557 Connelly v RTZ Corporation plc [1997] 3 WLR 373. [1981] 3 All ER 520 31 . [1986] 3 All ER 682 Purcell v Khayat (1987) The Times 23 November Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. [1983] 3 WLR 241. In re (Buenos Aires) Ltd [1991] 3 WLR 397 (CA) MacShannon v Rockware Glass [1978] AC 795 Mohammed v Bank of Kuwait [1996] 1 WLR 1483 (CA) Muduroglu Ltd v TC Ziraat Bankasi [1986] QB 1225. [1973] 2 All ER 174 Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50. arts 25–30 Supreme Court Act 1981: ss37 and 49(3) Case Law FOR U M NON C ONV ENIEN S AND TH E DI SCR ETION TO STAY PROC EEDING S – LIS ALIBI PEND ENS Abidin Daver. The [1984] AC 398. [1984] 1 All ER 470 Atlantic Star. [1983] 2 All ER 884 (HL) Bank of Tokyo Ltd v Karoon [1986] 3 All ER 468. [1986] 3 WLR 972. [1986] 3 All ER 843 (HL) (per Lord Goff) St Pierre v South American Stores [1936] 1 KB 382 Trendtex Trading Corpn v Credit Suisse [1982] AC 679. The [1974] AC 436.

[1998] 2 All ER 257 (HL) British Airways Board v Laker Airways Ltd [1985] AC 58. [1994] 2 All ER 540.Conflict of Laws LIS ALIBI PENDENS AND STAYING ACTIONS UNDER THE CONVENTION Foxen v Scotsman Publications Ltd (1994)The Times 17 February Overseas Union Insurance v New Hampshire Insurance [1991] IL Pr 495 Sarrio SA v Kuwait Investment Authority [1997] 4 All ER 929 (HL) Scherrens v Maenhout & Others Case 158/57 [1988] ECR 3791 INJUNCTIONS TO RESTRAIN FOREIGN PROCEEDINGS Airbus Industrie GIE v Patel [1998] 2 WLR 686. [1984] 3 All ER 39 Continental Bank v Aeakos [1994] 1 WLR 588. [1994] 1 Lloyd’s Rep 505 Midland Bank plc v Laker Airways [1986] 1 QB 689. [1986] 1 All ER 527 Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871. [1987] 3 WLR 59. [1986] 3 All ER 487 (HL) Turner v Grovit [2002] 1 All ER 960 (HL) Articles Barma and Elvin ‘Forum Non Conveniens:Where Do We Go from Here?’ (1985) 101 LQR 48 Briggs ‘No Interference with Foreign Court’ (1982) 31 ICLQ 189 Collins ‘Cumming v Scottish Daily Record and Sunday Mail’ (1995) 111 LQR 541 Collins and Davenport ‘Forum Conveniens Within the UK: Foxen v Scotsman Publications Ltd’ (1994) 110 LQR 325 English ‘Forum Non Conveniens: the Legal Aid Factor’ [1996] CLJ 214 Fentiman ‘Comity and Anti-suit injunctions: Airbus Industrie GIE v Patel’ [1998] CLJ 467 Harris ‘Staying Proceeding for a Contracting State to the Brussels Convention’ (1997) 113 LQR 557 Kennett ‘Forum Non Conveniens in Europe’ [1995] CLJ 552 Notes on the South Carolina Case (1987) 103 LQR 157 32 . [1987] 3 All ER 510 (PC) (per Lord Goff) (compulsory reading) South Carolina Insurance Co v Assurantie NV [1987] AC 24 (HL).

How is the natural forum of a dispute to be ascertained? What. properly brought founded? What was the test applied to the granting of stays before The Atlantic Star? What difficulties did it cause? 3.Conflict of Laws Peel ‘Forum Non Conveniens and the Impecunious Plaintiff’ (1997) 113 LQR 43 Peel ‘Anti-suit Injunctions – the House of Lords Declines to Act as International Policeman: Airbus Industrie GIE v Patel (1998) 114 LQR 543 Robertson ‘Forum Non Conveniens in America and England: “A Rather Fantastic Fiction” ’ (1987) 103 LQR 398 Schuz ‘Controlling Forum Shopping:The Impact of MacShannon v Rockware Glass Ltd’ (1986) 35 ICLQ 374 Slater‘Forum Non Conveniens:A View from the Shop Floor’ (1988) 104 LQR 554 Interrograms 1. that another action concerning the same dispute has been commenced in the natural and appropriate forum for that dispute? 8. 5. On what basis is the Court’s jurisdiction to stay actions. in general. is the result of successfully satisfying the court. 6. 2. How is the juridical advantage defined by Lord Goff? What is meant in British Airways Board v Laker Airways by the proceedings being ‘unconscionable’? 11. On what basis is the doctrine of ‘forum non conveniens’. May the English restrain proceedings in the courts of another ECstate? 33 . 7. recognised by the House of Lords in The Abidin Daver. How does the test for granting injunctions to restrain foreign proceedings differ from that applied to the granting of stays? 9. founded? 4. Has Spiliada made any changes in the law at all? Explain the six propositions of Lord Goff in Spiliada. 10.

Peter had produced a Joe Green expert living in Ruritania to support his assurances. where Charles. Most of the Joe Green experts live in Cantabria. manufactured a machine in France and sold it to Albert in England. Peter wishes to sue John.Conflict of Laws Questions 1. though they are violently divided over the question of distinguishing Joe Green's poorer works and John Brook's best compositions. 3. Consider and compare the tests which the English court will apply when granting (1) stays and (2) injunctions to restrain foreign proceedings. when John consulted an Oxonian valuer on his return. However. an obscure comptemporary. Peter had assured John that the manuscript was very valuable. domiciled in France. John. c) The facts are the same as in (ii) except that John is domiciled in Germany and has orally agreed that the English courts are to have exclusive jurisdiction over disputes arising out of the contract. John commences an action in the High Court for damages. domiciled and resident in New Zealand. (b) the courts of a foreign law district. John has not delivered the goods. make in both these situations? 4. entered into a written agreement in Ruritania to purchase a manuscript of an opera with Peter. being the original of a long-lost opera by the great Ruritanian composer. Have the English courts jurisdiction in the following cases? a) Jean. New Zealand law governed the contract and it was negotiated by John's agent. When will an English court restrain a person from commencing or continuing an action in a foreign court when no proceedings have been brought by or against him in England? 2. Fred. What difference would a clause granting exclusive jurisdiction in the dispute to (a) the English courts. b) John. under which John was to deliver goods from New Zealand to Japan. Albert installed the machine in his factory in Bristol. domiciled and resident in Cantabria. Charles wishes to sue Jean. Joe Green. wishing to utilise 34 . domiciled and resident in Oxonia. accepted there an offer made by Peter in English. In February 2003. from his office in London. he was informed that the manuscript was not by Joe Green but John Brook. Albert's employee was injured when using it because of a defect caused by careless manufacture.

or The contract contained a clause giving the Ruritanian Courts exclusive jurisdiction over the dispute? 5. a number of his investments having proved disastrous.Conflict of Laws the fact that he has heard that Peter has extensive properties in England. a) Does the doctrine of forum non conveniens have any part to play in proceedings governed by Regulation 44/2001/EC? b) In what circumstances will an English court restrain proceedings being taken in a foreign jurisdiction? 35 . In October 2003 Peter was flying from Transylvania to Cantrabria and his flight was forced by fog to stop over at Heathrow for five hours. Peter's financial situation in Cantabria is uncertain. and succeeded in serving Peter personally with a claim form before he left Heathrow. John heard of this. Peter applies to the High Court to stay proceedings. Will the court do so? Would it make any difference if either: a) b) John had already begun an action in Cantabria.

North and Fawcett – Relevant Chapter(s) The Conflict of Laws . have judgment given in his favour and then be in the unhappy situation of being unable to enforce the judgment because the defendant has absconded to England. McClean – Relevant Chapter(s) Cheshire and North: Private International Law . Collier – Relevant Chapter(s) Learning Outcomes a) b) To have examined the effect of foreign jurisdiction clauses. To have examined foreign judgments. we will examine what happens in these situations. chapter 3. Essential Reading Clarkson and Hill. Other Reading Morris: The Conflict of Laws . finality and conclusiveness of foreign judgments. including jurisdiction of the foreign courts. 36 . In this unit.Conflict of Laws Part 1: Study Unit Seven Topic Foreign Jurisdiction Clauses Recognition and Enforcement of Foreign Judgments (1) – The Traditional Rules Prologue A claimant may sue a defendant in a foreign court. Briggs – Relevant Chapter(s) Conflict of Laws . c) To have examined the non-merger rule.

[1981] 3 All ER 520 JUDGMENTS Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 De Cosse Brissac v Rathbone (1861) 5 H & N 301 De Wolf v Harry Cox BV [1976] ECR 1759 Goddard v Gray (1870) LR 6 QB 139 Henderson v Henderson (1844) 6 QB 288 Murthy v Sivasjothi [1999] 1 WLR 467(CA) Schibsby v Westenholz (1870) LR 6 QB 155 Showlag v Mansour [1994] 2 WLR 615. The [1970] P 94 Trendtex Trading Corpn v Credit Suisse [1982] AC 679. [1990] 2 WLR 657 Blohn v Desser [1962] 2 QB 116 Buchanan v Rucker (1809) 9 East 192 Carrick v Hancock (1895) 12 TLR 59 Castrique v Imrie (1870) LR 4 HL 414 Copin v Adamson (1874) LR 9 Ex 345 Emanuel v Symon [1908] 1 KB 302 Feyerick v Hubbard (1902) 71 LJ KB 509 37 . The [1981] 2 Lloyd’s Rep 119 Eleftheria. [1994] 2 All ER 129 (PC) JURISDICTION OF THE FOREIGN COURT Adams v Adams [1971] P 188 Adams v Cape Industries [1991] 1 All ER 929 (CA).Conflict of Laws Sources of Law Statute Civil Jurisdiction and Judgments Act (CJJA) 1982: ss33 and 34 Case Law FOREIGN JURISDICTION CLAUSES El Amria.

Conflict of Laws Henry v Geoprosco Ltd [1976] QB 726 Littauer Glove Corpn v FW Millington (1920) Ltd (1928) 44 TLR 756 Papadopoulos v Papadopoulos [1930] P 55 Tracomin SA v Sudan Oil Seeds Co Ltd (No 1) [1983] 1 WLR 1026. [1991] 4 All ER 722 (QBD) Articles Collier ‘Conflicts and Company Law Combine to Bar Enforcement of Asbestosis Damages: Adams v Cape Industries plc’ [1990] CLJ 416 Davenport ‘Injustice Just Avoided: The Indian Endurance and Indian Grace’ (1994) 110 LQR 25 Howcroft ‘Jurisdiction Clauses and the Brussels Convention’ (1988) 132 SJ 1538 Matthews ‘Pour Décourager les Autres’ (1996) 112 LQR 221 38 . (No 2) [1983] 3 All ER 140 Vogel v R & A Kohnstamn Ltd [1973] QB 133. [1993] 1 All ER 998 (HL) Vanquelin v Bouard (1863) 15 CBNS 341 NON-MERGER RULE Black v Yates [1991] 3 WLR 90. [1971] 2 All ER 1428 FINALITY OF JUDGMENT Beatty v Beatty [1924] 1 KB 807 Nouvion v Freeman (1889) 15 App Cas 1 Sadler v Robins (1808) 1 Camp 253 Scott v Pilkington (1862) 2 B & S 11 CONCLUSIVE FOREIGN JUDGMENT Goddard v Gray (1870) LR 6 QB 139 Pemberton v Hughes [1899] 1 Ch 781 Republic of India v India Steamship Co Ltd (The Indian Grace and Indian Endurance) [1993] AC 410.

9. Are there any circumstances in which it still applies today? 6. Explain the meaning of the non-merger rule.Conflict of Laws Interrograms 1. How can a judgment be recognised or enforced at common law? What is the procedure? 7. 10. 39 . In what respects does a choice of forum (exclusive jurisdiction) clause alter the approach of the court to the granting of a stay? 2. Compare the rules governing lis alibi pendens and choice of forum clauses at common law with those contained in arts 23 and 25–30 of Regulation 44/2001/EC? 3. On what basis will a court disregard a choice of forum clause? What is the doctrine of obligation and how does it compare to the doctrine of comity? 5. 4. 8. What is meant by the jurisdiction of the foreign court? Is mere presence sufficient to constitute the condition of residence? Can an agreement to submit be implied? Explain the operation of s33 CJJA 1982.

The High Court in Urbania decides that the arbitration clause is not valid according to English law as the proper law of the contract and awards Red Ltd damages. Under the contract any disputes are to be referred to arbitration in Paris and the proper law of the contract is English. Blue Ltd. 3. or arbitration in. In 1998. Red Ltd now seeks to enforce this judgment in England. an Urbanian company under which Blue Ltd is to supply a specified number of widgets to Red Ltd. a foreign country? 2. unhappy with the poor quality and the late delivery of the widgets sues Blue Ltd in Urbania for damages for breach of contract. When will the English courts stay an action concerning a term providing for the submission of disputes arising out of it exclusively to the courts of. an English company does some business in Urbania.Conflict of Laws Questions 1. Red Ltd. Would your advice differ if: a) Blue Ltd had appeared in the proceedings in Urbania to argue that the arbitration clause was valid: b) Blue Ltd had appeared to contest the proceedings on the basis of the validity of the arbitration clause and had also submitted a claim against Red Ltd for late payment of the goods delivered. Blue Ltd concludes a contract with Red Ltd. Do English courts apply the same jurisdictional rules to foreign courts as they do to themselves? Should they? 40 . Advise Blue Ltd.

there are a limited number of situations where the defendant in such an action can successfully argue that judgment should not be enforced against him in England. which we shall examine in this unit. Sources of Law Statutes Administration of Justice Act (AJA) 1920 Civil Jurisdiction and Judgments Act (CJJA) 1982 (see further Unit 9) Foreign Judgments (Reciprocal Enforcement) Act (FJ(RE)A) 1933 Protection of Trading Interests Act 1980 41 . To have considered direct enforcement of foreign judgments by statute.Conflict of Laws Part 1: Study Unit Eight Topic Recognition and Enforcement of Foreign Judgments (2) – The Defences Under Statute to the Traditional Rules Prologue Despite the general rule that a foreign court with international jurisdiction. Reading As for Study Unit 7. which has rendered a final and conclusive judgment for a specific sum of money. can have that judgment enforced in England. Learning Outcomes a) b) To have considered defences.

4. What happens if the foreign court makes a mistake as to its own jurisdiction? What if the foreign court makes a procedural mistake? 2. 3. [1988] 3 WLR 295. Explain the difference between estoppel as a defence and issue estoppel. [1984] 3 All ER 39 House of Spring Gardens v Waite [1991] 1 QB 241. [1990] 2 All ER 990 (CA) Jacobson v Frachon (1927) 138 LT 386 Jet Holdings Inc v Patel [1990] QB 335. [1989] 2 All ER 648 (CA) Ochsenbein v Papelier (1873) Ch App 695 Owens Bank v Bracco (No 1) [1992] 2 All ER 193 (HL). What are the prerequisites for estoppel? How does the defence of fraud differ from other defences? 42 . [1948] 2 All ER576 (CA) Tracomin SA v Sudan Oil Seeds Co Ltd (No 1) [1983] 1 WLR 1026. [1994] 1 All ER 336 (ECJ) Price v Dewhurst (1837) 8 Sin 879 Raulin v Fischer [1911] 2 KB 93 Syal v Heyward [1948] 2 KB 443. (No 2) [1994] 2 WLR 759.Conflict of Laws Case Law DEFENCES Abouloff v Oppenheimer (1882) 10 QBD 295 British Airways Board v Laker Airways [1983] AC 58. [1990] 3 WLR 347. (No 2) [1983] 3 All ER 140 Vadala v Lawes (1890) 25 QBD 310 Vervaeke v Smith [1983] 1 AC 145 DIRECT ENFORCEMENT OF FOREIGN JUDGMENTS BY STATUTE Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 (HL) Vervaeke v Smith [1983] 1 AC 145 Article Collier ‘Fraud Still Unravels Foreign Judgments: House of Spring Gardens Ltd v Waite’ [1992] CLJ 441 Interrograms 1.

Albert and George have both returned to England. George took from the premises money belonging to the business. Albert took no further part in the proceedings. a plaintiff who proves wilful default in the performance of a contract is entitled to treble damages. The Ruritanian court found for Fernando and awarded treble damages on the basis of wilful default. The action against Albert was for damages for mismanagement and the action against George was for the return of money unlawfully taken. Under Ruritanian law. Fernando commences separate proceedings in Ruritania against Albert and against George. Albert wholly mismanaged the business. The Ruritanian court rejected these contentions and held that it had jurisdiction. What are the major differences between enforcement under the AJA 1920 and the FJ(RE)A 1933 and how do they differ in relation to the traditional rules? 43 . What is the purpose of the AJA 1920? What type of judgments does it apply to? Explain s9 of the AJA 1920.Conflict of Laws 5. 6. Fernando suppressed an important document which might have shown that George was the true owner of the said money. Will he succeed? 2. George instructed lawyers to defend the action against him. However during the trial. How is a judgment registered under the FJ(RE)A 1933 set aside? What defences are available? Questions 1. to manage for Fernando a night club in Ruritania. 7. When he heard of the proceedings. with the result that Fernando lost a great deal of money. both domiciled in England. a Ruritanian. had contracted with Fernando. Albert instructed Ruritanian lawyers to contest the jurisdiction of the Ruritanian court on the grounds that Ruritania was not the convenient forum and that he was not a resident nor a national of Ruritania. In ignorance of this document. Albert and George. the court gave judgment against George. Fernando now seeks to enforce in England the judgments against Albert and George.

Essential Reading Clarkson and Hill. 44 . North and Fawcett – Relevant Chapter(s) The Conflict of Laws .Conflict of Laws Part 1: Study Unit Nine Topic Recognition and Enforcement of Foreign Judgments (3) – The Rules of the Regulation (and Brussels and Lugano Conventions) Prologue Broadly. b) To have considered appeals and defences in this area. chapter 4. Other Reading Morris: The Conflict of Laws . McClean – Relevant Chapter(s) Cheshire and North: Private International Law . the provisions which we shall examine here concern the principle that a defendant domiciled in the EC will only be sued in a court with which he has a substantial link. Collier – Relevant Chapter(s) Learning Outcomes a) To have considered registration and enforcement of judgments under CJJA 1982. Briggs – Relevant Chapter(s) Conflict of Laws .

Re [1996] 1 All ER 24 De Cavel v De Cavel [1979] ECR 1055 Denilauler v SNC Couchet Frères Case 125/79 [1981] ECR 1553 De Wolf v Cox Case 42/76 [1976] ECR 1759 F (A Minor). 28 and 59 Child Abduction and Custody Act 1985 Civil Jurisdiction and Judgments Act (CJJA) 1982 Regulation 44/2001/EC. (No 2) [1994] 2 WLR 759. Re [1994] 2 WLR 228 Orams v Apostolides [2006] EWHC 2226. Re [1994] 2 WLR 269 (CA) Interdesco SA v Nullifire [1992] 1 Lloyd’s Rep 180 Klomps v Michel Case 166/80 [1981] ECR 1593 L (Child Abduction: European Convention). Re [1995] 3 All ER 641 H (A Minor). [1994] 1 All ER 336 (ECJ) Pendy Plastic Products v Pluspunkt [1982] ECR 2723 S (Minors: Abduction: Wrongful Retention).Conflict of Laws Sources of Law Statutes Brussels and Lugano Conventions: arts 20. Purposes and the Brussels Convention: Owens Bank Ltd v Bracco (No 2)’ [1994] CLJ 239 Peel ‘Recognition and Enforcement Under the Brussels Convention: Owens Bank Ltd v 45 . arts 32–52 Case Law A and Others (Minors). Re [1992] 2 FLR 178 Minalmet GmbH v Brandeis Ltd [1993] ILPr 132 (ECJ) Owens Bank v Bracco (No 1) [1992] AC 443 (HL). 27. Times 22 September 2006 Articles Briggs ‘Foreign Judgments:More Surprises: Owens Bank Ltd v Bracco (No 1)’ (1992) 109 LQR 549 Fentiman ‘Judgments.

sells vintage cars. Yanks Ltd appear to contest jurisdiction and also to claim that the car is not exactly what it agreed to purchase.Conflict of Laws Bracco (No 2)’ (1994) 110 LQR 386 Interrograms 1. 6. Frank is notified of the proceedings and he appears to argue his defence. a resident and national of France. Jean starts proceedings against both parties in separate proceedings in France. What differences exist? Compare the jurisdiction requirements with the enforcement of judgments requirements under the CJJA 1982. What defences are available under art 34? What defences are available under art 35? Questions 1. Yanks Ltd. The French court rejects these submissions 46 . What is the position in relation to ex parte orders? Explain the procedure of enforcement under the Act. 2. What differences exist? 3. Yanks Ltd is notified of the French proceedings against it two days before the hearing. a company incorporated in New York. 8. 5. How is a judgment registered under the CJJA 1982. an Englishman dealing in vintage cars. The French court rejects his submission and awards damages to Jean. His main reason for not paying under the contract is that Jean fraudulently represented that the car was a 1929 model. agrees to buy another of Jean's cars. Frank. agrees to buy one of Jean's cars. This is because Yanks Ltd never gave their correct trading address to Jean. What is the appeal procedure available against registration of a judgment under the CJJA 1982? Does an appeal ever lie to the House of Lords? 7. Frank has evidence to support his claim that the car is not genuine but he does not put any of this argument to the court preferring to rely on inter alia his submission that the French court does not have jurisdiction in the action. Is the CJJA 1982 in relation to Judgments exclusive or is it an alternative to the common law rules? 4. Jean. However both contracts fail because both Yanks Ltd and Frank refuse to pay under the contract.

a) b) 3. He is thinking of moving some of his assets to Denmark and some to Russia. and in 2003 X started an action in an Oxonian country court claiming the price of £10. The Oxonian court allowed X to serve Y with a writ in England on the ground that the contract was concluded in Oxonia. Counsel for Y appeared before that court and argued (a) that the Oxonian courts had no jurisdiction over Y.000. These arguments were dismissed and counsel withdrew. As (a). 2. Compare (a) the basis of recognition of foreign judgments and (b) the grounds for refusing to recognise a foreign judgment: i) ii) iii) at common law. What are the advantages of enforcement under: a) b) The 1933 Act? Regulation 44/2001/EC? 47 . which Y did not pay.000. Frank fears that Jean may try to enforce the judgment against him in England and he starts to remove his assets. He also wishes to enforce the judgment against Frank and seeks your advice on what he should do.Conflict of Laws and gives judgment in Jean's favour. In 2002 by a contract concluded there but expressed to be governed by English law he sold and delivered a painting to Y for £10. 4. In the end of 2002 Y came to live in England. He is planning to start fresh proceedings against Yanks Ltd in England because he fears that the French judgment will not be recognised due to the contravention of art 3 in relation to exorbitant practices.000. Advise Y what defences are and are not available to him. under Regulation 44/2001/EC.000.000 which X would have to pay back as VAT in Oxonia and (iii) the price of £10. X and Y were both residents in Oxonia. X now seeks to enforce the judgment in England. under the Foreign Judgments (Reciprocal Enforcement) Act 1933. The judge awarded X the following (i) £2.000 punitive damages. and (b) (correctly) that under Oxonian law the county court could not hear the case where the amount exceeded £5. but Oxonia is really Italy. He seeks your advice. Jean now wishes to have both judgments enforced in England. which he erroneously thought English law allowed and (ii) £1.

Will he be successful? Would the position have been different if the contract had called for delivery in Germany and Boris had brought the action before a German court? 48 . The bank seeks your advice as to whether the judgment will be recognised and enforced in England where B has considerable assets. a Russian importer. The Russian court refuses to do this and Sally then withdraws from the proceedings. that English law was the same as Utopian law and. b) that the Utopian court assumed. Russia. and c) that one of the witnesses of the bank had given perjured evidence. in view of the jurisdiction clause. It appears that: a) B did not receive the proper period of notice of the proceedings required by Utopian law. ignored a conclusive defence which would have been available to B under English law. The contract contains an English jurisdiction clause and specifies delivery in St Petersburg. Sally enters a conditional appearance and argues that. agrees to sell a consignment of soya beans to Boris. resident in England but carrying on part of his business in Utopia. What difference would it make to your answer if Utopia was a member of the EC? 6.Conflict of Laws 5. Sally. a domiciled Utopian national. having been paid to do so by C. The Bank of Utopia obtained judgment in Utopia against B. in October 2003. The judgment was for breach of an agreement whereby B had guaranteed a loan made by the bank to C. purporting to apply the former. incorrectly. the Russian court ought to stay the proceedings. The contract of guarantee contained a clause submitting all disputes arising out of it to arbitration in Utopia. Boris claims that the soya beans were contaminated and he sues Sally in Russia. a commodity dealer domiciled and resident in England. Boris obtains a default judgment which he now wishes to enforce in England.

49 . North and Fawcett – Relevant Chapter(s) The Conflict of Laws . it must establish which category that issue falls into so that it can then apply the relevant choice of law. c) To have considered the resolution of incidental questions concerning international facts. Other Reading Morris: The Conflict of Laws . Collier – Relevant Chapter(s) Learning Outcomes a) To have examined the concept of characterisation and the criteria by which a problem is characterised. McClean – Relevant Chapter(s) Cheshire and North: Private International Law . chapters 1 and 12. Briggs – Relevant Chapter(s) Conflict of Laws .Conflict of Laws Part 2: Study Unit Ten Topic Choice of Law Process – Characterisation and Renvoi Prologue Before a court can decide any issue. b) To have considered the renvoi: interpretation of law in relation to lex situs and lex domicilii. Essential Reading Clarkson and hill.

Re [1930] 2 Ch 259 Collier v Rivaz (1841) 2 Curt 855 Kotia v Nahas [1941] AC 403 O’Keefe. [1983] 2 All ER 884 Annesley. ex parte Arias [1968] 2 QB 956 Ross. Re [1926] Ch 692 Askew. Re [1945] Ch 5 Dimskal Shipping v ITWF [1991] 4 All ER 871 Maldanado. Re [1954] p 223 Ogden v Ogden [1908] P 46 RENVOI AND THE INCIDENTAL QUESTION a) Interpretation of the Connecting Factor – Renvoi Amin Rasheed v Kuwait [1984] AC 50. Re [1930] 1 Ch 377 Taczanowska v Taczanowski [1957] P 301 Vita Food Products v Unus Shipping Co [1939] AC 277 b Problem of Incidental or Preliminary Question Lawrence v Lawrence [1985] 3 WLR 125. Re [1940] Ch 124 R v Brentwood Registrar of Marriages. [1985] Fam 106 Padolecchia v Padolecchia [1968] P 314 50 .Conflict of Laws Sources of Law Statutes Foreign Limitation Periods Act 1984: s1(5) – see now Rome (Contracts) Convention: art 15 Private International Law (Miscellaneous Provisions)Act 1995: s9(5) Case Law CHARACTERISATION Apt v Apt [1948] P 83 Cohn.

law of the domicile. What is the incidental question? What are the necessary pre-requisites to the existence of an incidental question? Why must foreign law be pleaded? How is it done? 51 . 3. 12. What is the process of characterisation? What is its importance? By the criteria of which system of law is characterisation conducted? Why? Are the criteria of the domestic (internal) law of the forum necessarily relevant to characterisation? 4. 2. Consider the operation of renvoi in the context of the following factors: a) b) c) 10.Conflict of Laws Perrins v Perrini [1979] Fam 84 Schwebel v Ungar (1963) 42 DLR (2d) 622. (1964) 48 DLR (2d) 644 (Ontario) PROOF OF FOREIGN LAW Glencore International AC v Metro Trading Inc [2001] 1 Lloyd’s LR 283 Articles Briggs ‘In Praise and Defence of Renvoi’ (1998) 47 ICLQ 877 Dutson ‘The Conflict of Laws and Statutes’ (1997) 60 MLR 668 Forsyth ‘Characterisation Revisited: An Essay in the Theory and Practice in the English Conflict of Laws’ (1998) 114 LQR 141 Interrograms 1. What is the problem which renvoi attempts to deal with? What is ‘partial’ renvoi? Explain the doctrine of ‘total’ renvoi. Why is it called the ‘foreign court theory’? Which approach to renvoi have the English courts adopted? What are the comparative advantages and disadvantages of partial and total renvoi theories? 9. What do you consider (if anything) to be a convincing argument against the use of renvoi? 11. 6. 13. proper law of the contract. 5. 7. lex situs. 8.

(b) under Franconian law.Conflict of Laws 14. H and W.. They are now both temporarily resident in England. and determined by a judge. P and D are Franconian nationals. 3. is (about) what is meant by the law of the domicile? Does the 52 . P's case is that he was injured as a result of having to brake hard when D. 15. both domiciled in England. suddenly ran in front of his car. By Urbanian law. P sues D in England for negligence resulting from a street accident in Franconia. domiciled and at the time of the accident resident in Franconia. go through a ceremony of marriage by proxies in Urbania. The English trial judge sitting with a jury gives no instruction about the Franconian presumption. Discuss.. the motorist must have been negligent. What are the consequences of not pleading/proving foreign law? Who may be called as an expert to prove foreign law? Questions 1. or (b) would be so treated even in a private international law context? 4. Will the marriage be treated as valid in England? 2. reasonableness in the context of negligence is treated as a matter of law. a challenge to the validity of a marriage on the ground that it was by proxy is regarded as raising a question of capacity. but compelling presumption of law that when a motorist and a pedestrian are involved in an accident. The jury finds for the plaintiff and the defendant appeals. a pedestrian. The possibly relevant rules of English and of Franconian law differ in only two respects: (a) under Franconian law. formalities of marriage are governed by the lex loci celebrationis . capacity to marry is governed by the law of the domicil. and Urbanian domiciliaries have capacity to contract such marriages. rejects the testimony of an expert witness to the effect that on the admitted facts a Franconian judge would have found as a matter of law that D's behaviour was reasonable and leaves the issue of reasonableness to the jury. 'The dispute . there is a rebuttable. What would have been the position in In Re Cohn if uncontradicted evidence had been tendered to the effect that in a German court the relevant rule of German law (a) would be treated as a rule of procedural law for domestic purposes.

including its rules of private international law administered by its tribunals?' Discuss in relation to the approach adopted by the English courts. namely.. 6. 5. mean only that part of the domiciliary law which is applicable to nationals of the country of domicile .. Consider the view that the doctrine of renvoi has no place in the modern world of international transactions. or does it mean the whole law of the country of domicile. English law. Why does renvoi have no place in the law of contract or tort? Should it have a place in any other part of private international law? If so.. 'English courts should characterise according to the only system of law they understand.. what view of renvoi should be held? 7.Conflict of Laws phrase .' Do you agree? Does this approach have any limitations? 53 .

Conflict of Laws Part 2: Study Unit Eleven Topic Contract (1) – Jurisdiction – Choice of Law Generally Prologue A contractual obligation cannot exist in vacuo. Briggs – Relevant Chapter(s) Conflict of Laws . 2. 4. Other Reading Morris: The Conflict of Laws . McClean – Relevant Chapter(s) Cheshire and North: Private International Law . Sources of Law Statutes American Restatement (2nd) (Conflicts): paras 187 and 188 Rome Convention: arts 1. it must draw its existence from a legal system which specifies that in the particular circumstances a contract exists. 5 and 6 54 . 3. we shall examine how the applicable law of a contract is established. Collier – Relevant Chapter(s) Learning Outcome To have examined choice of law in contract. Essential Reading Clarkson and Hill chapters 3 and 5. North and Fawcett – Relevant Chapter(s) The Conflict of Laws . In this unit.

[1983] 3 WLR 241.Conflict of Laws Case Law Amin Rasheed v Kuwait Insurance [1984] 1 AC 50. [1970] 1 All ER 976 Articles Kahn-Freud ‘The Proper Law of a Contract and Affreightment’ (1954) 17 MLR 255 Peel ‘Jurisdiction over Non-Existent Contracts: Boss Group v Boss France’ (1996) 112 LQR 541 Smith ‘The Assunzione Revisited’ (1969) 18 ICLQ 449 55 . Re [1961] AC 1007 Vita Foods v Unus Shipping [1939] AC 277 Whitworth St Estates v Miller [1970] AC 583. [1983] 2 All ER 884 (HL) Bank of Baroda v Vysya Bank Ltd [1994] 2 LLR 87 Boissevain v Weil [1949] 1 KB 482 Bonython v Commonwealth of Australia [1951] AC 201 (PC) Boss Group v Boss France SA [1996] 4 All ER 970 (CA) Brinkibon Ltd v Stahag Stahl [1982] 2 AC 34 (HL) Cuban Atlantic Sugar Sales Co v Compania de Vapores etc [1960] 1 QB 187 (CA) Entores v Miles Far East Corp [1955] 2 QB 327 (HL) Hamlyn v Talisker Distillery [1894] AC 202 Helberg Wagg. Re [1956] 1 All ER 129 Libyan Arab Foreign Bank v Bankers Trust Co [1989] 3 WLR 314 Libyan Arab Foreign Bank v Manufacturers Hanover Trust Co [1988] 2 Lloyd’s Rep 494 Mackender v Feldia AG [1967] 2 QB 590 Marconi Communications Int Ltd v P TPan Indonesia Bank [2004] 1 LLR 591 Oppenheimer v Louis Rosenthal and Co [1937] 1 All ER 23 (CA) R v International Trustee [1937] AC 500 United Railways of the Havana & Regla Warehouses Ltd.

Will the language and form of a standard form contract used internationally. The silver polish would be sold to X by Y and payment would be made to Y in Belgian francs. an English company enters into a contract with Y Co. an agreement with Y. 7. in terms of English 56 . under which X would have the sole right to sell in the United Kingdom silver polish produced by Y.Conflict of Laws Interrograms 1. A dispute has now arisen between X and Y and an action is brought in the High Court in London.20? 3. Will the courts ever apply an objective test to determine the applicable law? What is meant by implied choice? Compare the advantages and disadvantages of the subjective and objective approaches to ascertaining the applicable law. The final agreement was drafted by English solicitors in the English language and the contract was signed by the managing directors of X and Y when they met at a conference in Denmark. Does ‘law’ as in ‘applicable law’ refer to the domestic or conflicts rules of the relevant system of law? Questions 1. be conclusive as to the applicable law? 9. a) b) What is the applicable law of the contract? Would your answer be different if the contract contained a clause stating that the contract should be governed by Swedish law? 2. In what circumstances can a claim form be served out of jurisdiction in a contract case? What restrictions on this exist? 2. a French company. The contract is in standard English form written in English. but with branches in England and Wales where it sold silver polish. 6. X was a Scottish company with its principal place of business in Glasgow. 4. What is the function of the applicable law of the contract? What general approach do the English courts take to ascertaining the applicable law? 5. a Belgian company. It negotiated in Italy. X Co. 8. in which the French company undertakes to repair X Co's wharf in Le Havre. Will the fact that it is established that a contract is governed by English law enable a party to serve a writ out of jurisdiction under CPR 6.

since a French equivalent standard form did not then exist. Advise X Co as to this possibility. The lex loci contractus is France. if any. By French law. A dispute arises as to the methods used in the repair and the English supervising architect appoints a French arbitrator – who conducts the arbitration according to normal French procedure.Conflict of Laws law – it having been proved impracticable to draft the contract in French form. There is a standard English arbitration clause and an Englishman is appointed as the supervising architect. X Co wish an English court to reverse this decision. In this case. at Y Co' office. how far would it make a difference. arbitrators have authority to decide both points of law and fact and when the English Co asks the arbitrator to put a disputed point of law to the English High Court (as would be the case if the arbitration were conducted according to English procedure) he refuses. were the contract to contain a clause stating that the applicable law of the contract was English law? 57 .

we shall look at those areas in which the applicable law is either not applicable at all. 58 . Essential Reading Clarkson and Hill. and in this unit. b) To have considered the creation of the obligation. Learning Outcomes a) To have considered limits on the role of the applicable law by common law and under statute. Briggs – Relevant Chapter(s) Clarkson and Hill. North and Fawcett – Relevant Chapter(s) The Conflict of Laws . the reality of the agreement and consideration and other essential requirements apart from form. McClean – Relevant Chapter(s) Cheshire and North: Private International Law . or it is questionable whether or not it is applicable. chapter 5. in particular the fact of the agreement. Other Reading Morris: The Conflict of Laws . chapter 5.Conflict of Laws Part 2: Study Unit Twelve Topic Contract (2) – Limits on the Role of the Applicable Law – Creation of the Obligation Prologue Not all contractual matters are governed by the applicable law.

Re [1912] Ch 394 Golden Acres v Queensland Estates [1969] Qd R 378 Hollandia. The [1983] 1 AC 565. [1982] 3 All ER 1141 (HL) Mackender v Feldia AG [1967] 2 QB 590 Mount Albert BC v Australasian Temperance [1938] AC 224 Parouth. The [1982] 2 Lloyd’s Rep 351 Scott v Pilkington (1862) 2 B & S 11 Vita Food Products v Unus Shipping [1939] AC 277 Articles Jaffey ‘Choice of Law’ (1975) 24 ICLQ 603. (1974) 23 ICLQ 1 Jaffey ‘Statutes and Choice of Law’ (1984) 100 LQR 198 Jaffey ‘The English Proper Law Doctrine and the EEC Convention’ (1984) 33 ICLQ 531 Mann ‘Uniform Statutes in English Law’ (1983) 99 LQR 376 Mann ‘Unfair Contract Terms Act 1977 and the Conflict of Laws’ (1978) 27 ICLQ 661 North ‘The EEC Convention on the Law Applicable to Contractual Obligations’ [1980] JBL 382 Nott ‘The Impact of Statutes on the Conflict of Laws’ (1984) 33 ICLQ 437 Reynolds ‘Vita Food Resurgent’ (1992) 108 LQR 395 Williams ‘The EEC Convention on the Law Applicable to Contractual Obligations’ (1986) 35 ICLQ 1 59 .Conflict of Laws Sources of Law Statutes Carriage of Goods by Sea Act 1971: s1(2) Contracts (Applicable Law) Act 1990 Convention on Law Applicable to Contractual Obligations 1980: arts 7 and 8 Unfair Contract Terms Act 1977: ss26 and 27 Case Law Albeko Schuhmaschinen v The Kamborian Shoe Machine Co Ltd (1961) 11 LJ 519 Bonacina.

aged 20. Before he receives this.' Lord Denning in The Hollandia . 4. 60 . Is the selection of the applicable law of a contract which infringes s27 of the UCTA 1977 struck down? Explain the mechanism of this section. 5. A. acceptance is valid only when received and infancy is a good defence to an action for breach of contract. What issues are contained in the general heading of ‘essential validity’? What is the putative proper law? How is it ascertained? Consider the possible approach of an English court to a situation where the putative proper law considers silence to constitute acceptance to an offer and such an analysis would involve holding an English resident bound by a contract the offer of which he had thrown away in the rubbish. A term of the offer is that the contract should be governed by Saxonian law. What limits exist on the freedom of contractual parties to choose the applicable law of the contract? 2. 'In all the courts of the United Kingdom. who is resident and domiciled in England.. posts a letter to B. A also promises to keep this offer open for seven days. resident and domiciled in Saxonia.Conflict of Laws Interrograms 1. A sends B a telegram revoking the offer. the provisions of the rules (The Hague-Visby Rules as adopted by the Carriage of Goods by Sea Act 1971) are to be given the coercive force of law . a promise to keep an offer open is binding without consideration. A is an infant under Saxonian law. B posts a letter of acceptance to A. who wishes to sue A in England for breach of contract. 7. Three days later. 2. Under Saxonian law.. Does the bona fide requirement in choosing the proper law (Lord Wright in Vita Foods) amount to a full blown doctrine of evasion? How was the phrase interpreted in the Golden Acres case? 3. offering to sell his car to B. Advise B. 6. the Rules are to be given supremacy over every other provision of the bill of lading. Should the courts adopt a generally subjective or objective approach to ascertaining the putative proper law? Questions 1. Discuss.

capacity to contract is acquired at the age of 21: silence of the offeree in such circumstances constitutes acceptance of the offer. Jim aged 19. 61 . Under Urbian law. You are instructed to advise Jim what defences he may. Answer the following on the alternative assumptions that the Contracts (Applicable Law) Act 1990 (1) does and (2) does not apply. Indeed Tom wrote to Jim on 4 May accepting the offer. an acceptance by post is only effective upon receipt by the offeror. an action for breach of contract must be commenced within two years of the breach (under English law within six years). Blofeld does not reply to the letter but begins work on the reel. Jim is now domiciled and resident in England and Tom started an action in the High Court for breach of contract by claim form issued on 10 September 2003. a fishing-tackle maker in Danelandia. offering to sell Tom a case of rare vintage champagne which he had in Urbia for £5. domiciled and resident in Urbia. wrote a letter in English to Tom. On 20 May Jim sold the champagne to Ted who also lived in Urbia. weight and age. but his letter was lost in transit and failed to reach Jim. What was the choide of law in The Hollandia ? Why were the choice of law and choice of forum clause held to be void? 5. 4. Blofeld despatches a catalogue and Orville places an order commissioning Blofeld to make a fishing reel to Orville's specifications. aged 25 and domiciled and resident in England. Under Danelandian law silence constitutes acceptance of an offer sent through the post. By Urbian law. Jim wrote that his offer was open for one month and that if he did not hear from Tom within that time. he would take it that Tom had accepted the offer. a) Orville. aged 20. writes to Blofeld.Conflict of Laws 3. and may not successfully plead to Tom's claim. domiciled in England. While the reel is being made changes in the value of the currency render the deal unprofitable for Blofeld and he refuses to deliver the reel. Under Danelandian law contracts made by a person under the age of 25 cannot be enforced against him. On 30 April 2001. requesting a copy of Blofeld's mail order catalogue which has been advertised in an English magazine. and a promise to keep an offer open for a stated period is binding upon the offeror. Amongst the details included in Orville's order are his height. Discuss.000.

if at all. would your answer differ if Blofeld delivered the reel but Orville refused to accept it having changed his mind since placing the order? b) Crook. After the contract is signed the Spanish decree is revoked and in its place it is provided that all drugs manufactured in Spain must comply with the controls. Because of quality controls existing in Spanish law which increase the price of the manufacturing process Crook suggests the contract should be governed by Brazilian law. A decree in force in Spain provides that the controls do not apply to drugs manufactured under contracts governed by foreign law. writes to Nutt.Conflict of Laws How far. 62 . a Brazilian businessman. domiciled and carrying on business in England. offering to buy drugs from Nutt's Spanish laboratory. Nutt refuses to complete the contract. Nutt agrees to sell the drugs at a price which reflects the avoidance of the controls.

performance. to certain elements of the contract. chapters 5 and 6(v). 63 . including material validity. ) Other Reading Morris: The Conflict of Laws . McClean – Relevant Chapter(s) Cheshire and North: Private International Law . agency. we shall further examine the somewhat sticky situations where the applicable law of the contract cannot be applied. Collier – Relevant Chapter(s) Jaffey on the Conflict of Laws . To have examined other matters affecting obligation.Conflict of Laws Part 2: Study Unit Thirteen Topic Contract (3) – Formal Validity – Capacity – Illegality – Other Matters Affecting Obligation Prologue In this unit. North and Fawcett – Relevant Chapter(s) Conflict of Laws . or is difficult to apply. Clarkson and Hill – Relevant Chapter(s) Learning Outcomes a) b) To have examined issues relating to formal validity. capacity and illegality. Essential Reading Clarkson and Hill. interpretation and discharge.

10 and 11 Statute of Frauds: s4 Case Law FORMAL VALIDITY Leroux v Brown (1852) 12 CB 801 CAPACITY Bodley Head Ltd v Flegon [1972] 1 WLR 680 Charron v Montreal Trust Co (1958) 15 DLR (2d) 240 Male v Roberts (1790) 3 Esp 163 Sottomayer v De Barros (No 1) (1877) LR 3 PD 1 ILLEGALITY Boissevain v Weil [1950] AC 327. 9. [1949] 1 KB 482 Foster v Driscoll [1929] 1 KB 470 Jacobs v Credit Lyonnais (1884) 12 QBD 589 Kahler v Midland Bank [1950] AC 57 Mackender v Feldia [1967] 2 QB 590. The [1932] P 78 United City Merchants (Investments) Ltd v Royal Bank of Canada [1982] QB 208 Vita Food v Unus Shipping [1939] AC 277 PERFORMANCE Jacobs v Credit Lyonnais (1884) 12 QBD 589 64 . [1966] 3 All ER 847 Moulis v Owen [1907] 1 KB 746 R v International Trustee [1937] AC 24 Ralli Bros v Compania Naviera Sota y Aznar [1920] 2 KB 287 Regazzoni v Sethia Ltd (1944) [1958] AC 301 Soleimany v Soleimany [1998] 3 WLR 811 Torni.Conflict of Laws Sources of Law Statutes Rome (Contracts) Convention: arts 8.

What law or laws governs the issue of formal validity of a contract? What matters may properly be characterised as formal requirements? 2. Re [1961] AC 1007. by reference to the proper law.Conflict of Laws Mount Albert BC v Australian Temperance & General Mutual Life Assurance Society [1938] AC 224. 6. should that proper law be subjectively or objectively ascertained? 4. Is there a clear answer to the question ‘what law governs the issue of capacity to enter into a contract?’ Should there be? Does the Contracts Convention provide an answer? 3. What effect does illegality by its applicable law have on a contract? Of what significance to a contract is illegality by the following laws: a) b) 7. What law governs the discharge of a contract by a) performance 65 . lex loci contractus. Is it true to say that illegality by the lex loci solutionis renders a contract unenforceable? Is there another basis on which the cases may be explained? 8. To what difficulties might the adoption of the law of the domicile as the sole factor by which contractual capacity is to be determined give rise? 5. lex loci solutionis. [1960] Ch 52 Articles Fawcett ‘Evasion of Law and Mandatory Rules in Private International Law’ [1990] CLJ 44 Hogan ‘Contracting Out of the Rome Convention’ (1992) 108 LQR 12 Mann ‘Contracting Out of the Rome Convention’ (1991) 107 LQR 353 Reynolds ‘Illegality bt Lex Loci Solutionis’ (1992) 108 LQR 553 Rogerson ‘The Rome Convention’ [1991] NLJ 281 and 359 Interrograms 1. [1937] 4 All ER 206 DISCHARGE Jacobs v Credit Lyonnais (1884) 12 QBD 589 United Railways. If capacity is to be ascertained either wholly or partly.

and Kel. This has not been done. frustration? On what basis do English conflicts rules distinguish between: a) b) The extent of the obligation. By Guatemalan law. Last March a written contract was entered into by Neale. Thomas. The contract was concluded in Dunelmnia where both Neale and Kel were attending a one-day conference. By Dunelmnian law. whereby Neale agreed to sell to Kel a consignment of 200 crates of brandy to be exported from Ruritania to Oxonia. He makes a trip to Guatemala. a Panamanian. Thomas sues in England and (assuming the English court has jurisdiction) the Guatemalan Co relies on his incapacity as a defence. capacity to contract to purchase liquor is not conferred until 21 (it being the Guatemalan government's policy to protect young people from the evil of drink). Clause 3 of the contract stated. 'this contract is governed by the law of the kingdom of Cantabria'. By Floxican law. goes on holiday to Floxica. contracts may be concluded validly at the age of 16 – which is the Floxican age of majority. How would you advise Herbert. a London supplier. where he enters into a contract for the sale of a motorcycle with Herbert (a Floxican dealer). is aged 19. 3. Ronald discovers that he has overspent on his holiday and seeks to repudiate the contract on the grounds that by Ruritanian law no person may conclude a valid contract until the age of 21 unless authorised by a parent. a domiciled Ruritanian aged 16. a domiciled Englishman. a contract between non-Dunelmnian residents is void unless made under seal. but the Guatemalan liquor firm wish to sell the spirit to Joseph. a Danish businessman. where he purchases a case of the local spirit on credit. Write an opinion as to the outcome of this dispute. What matters are included in the mode/manner category? Questions 1. who wishes to bring an action in an English forum? Would it make any difference to your answer if Floxican law treated questions of capacity to contract as a matter for the law of the domicil? 2. 66 .Conflict of Laws b) 9. who is willing to pay more. Ronald. However. The mode and manner of its performance? 10. Thomas wishes to enforce the contract. Cantabrian law has no such requirement. which this contract was not.

carrying on business in France. fob Bordeaux.Conflict of Laws It is known to both parties that Ruritanian law forbids the export of alcohol and the contract by that law is illegal. but voidable by French law. The French decree excused X from performing the contract. agrees with Y. However the brandy is secretly shipped from Ruritania. carrying on business in Germany that X shall deliver to Y a quantity of wine. or (b) English law? 5. X fails to deliver the wine and is sued for breach of contract by Y. X contends that the English court has no jurisdiction over the jurisdiction clause in the contract since X entered into the contract under the influence of a mistake as to the person which would make the contract void by English and German law. Kel instructs Neale to deliver the goods to Esbjerg in Denmark in Denmark. the French government passes a decree prohibiting the further export of wine from France. X. 4. importation or other dealings with alcohol for two years. 'The Rome Convention has followed the English notion of the proper law of the contract very closely. The contract provides that it is governed by German law and that the High Court of England shall have jurisdiction to determine all disputes arising out of it and gives the addresses for service in England. Before X can deliver the wine. however. Before it arrives in Oxonia. 67 . Cantabrian law permits a buyer who is unable to take delivery in the place stated in the contract to nominate a place where it is possible and not illegal to do so. Advise X. the Oxonian legislature enacts a law (with immediate effect) prohibiting the sale.' Discuss. Would your answer be different if the contract were governed by (a) French law. Neale ignores this and resells the consignment of brandy to Ulf in Norway. Kel wishes to sue Neale for breach of contract and comes to you for advice.

write out your own. it is an expensive and frustrating way to find out. b) c) Do exercise constant self-discipline. without looking at the skeleton answer (if there is one). if you have time. Unfortunately. The more you study. While examiners do not require familiarity with changes in the law during the three months prior to the examination. The short list of do’s and don’ts below attempts to set out some suggestions which it is hoped most students will find of practical use in planning their revision and tackling examinations. it is not necessary to wait until the real thing. Do. You can use the questions set throughout this Planner to stage your own practice run. during your course of study. For example. Allocate enough time for each topic to be studied. Or. While it is true that examination techniques are best learned actually sitting examinations. In any case. tackle a full quota of four or five questions at once – as a mock examination. select a question and. it obviously creates a good impression to show you are acquainted with any recent changes. tackled under realistic conditions. ‘Mock’ examinations. constantly test yourself orally and in writing. can be very helpful. If it is not. Sources that you 68 . the more you devise your own short cuts for efficient preparation for exams. skill in revision and examination techniques is an art best acquired by actual practice. Do's Before the examination a) Do plan ahead and make your plans increasingly detailed as you approach the examination date.Conflict of Laws Revision and Examination Technique Whole books have been written on how to study and this brief note makes no pretence at being an infallible guide. it is only when you actually sit the examination that you can see whether your particular method of revision is successful. especially if studying at home. bearing in mind the time actually available to you before the exams. d) Do keep up-to-date. especially once revision starts.

Conflict of Laws might look at in order to be up to date include: leading journals such as Modern Law Review. Law Quarterly Review and New Law Journal. While any last minute changes are unlikely – such as the introduction of a compulsory question – it has been known to happen. In particular. PLAN YOUR ANSWER before you start to write. In the examination room f) Do read the instructions on the examination paper carefully. it may be useful at this juncture to say a few words about the structure of your answers in the examination. i) Do allow enough time to re-read your answers. c) Don’t answer the question you expect to see! By all means ‘problem-spot’ before examinations by going over old exam papers but make sure that what the examiner is asking for really does match what you are preparing to write about. Learn to express the basic concepts in your own words. e) Do familiarise yourself with past examination papers. If you are the sort of person who works better to a deadline – make it a realistic one! b) Don’t try to learn by rote. h) Do note mark allocations (if any) on the question paper. cumulative indices to law reports such as the All England Law Reports. Don'ts a) Don’t finish the syllabus too early – constant revision of the same topic leads to stagnation – but DON’T leave revision so late that you have to ‘cram’. A misplaced word (a ‘not’ in the wrong place. don’t try to reproduce model answers by heart. Analyse problem questions – work out what the examiner wants. It is pointless to spend an excessive amount of time in producing a perfect answer to a part of a problem that carries only a tiny percentage of the marks. g) Do read the questions carefully. and try at least one ‘mock examination’ well before the date of the real thing. and above all – d) DON’T PANIC! Finally. Almost all examination problems raise more than one legal 69 . for example) may turn a good answer into gibberish. and such sources as the Law Society’s ‘Gazette’ and the Legal Executive ‘Journal’.

show how it is relevant to the question. No more facts should be stated than are absolutely essential to establish the relevance of the case. The advice will usually turn on the individual answers to a number of issues. and it will make him more disposed in your favour. is the substance of the answer and where study and revision pays off. it is sufficient to refer to it as ‘one decided case’. e) Whenever a statute or case is cited. f) Having dealt with the relevant issues. the title of the statute or the name of the case should be underlined This makes the examiner’s job much easier because he can see at a glance whether the relevant material has been dealt with. If there is a relevant case. or the meaning of the statute has been interpreted by the courts. It indicates to the examiner that you appreciate what he is asking you about. summarise your conclusions in such a way that you answer the question A question will often say at the end simply ‘Advise A’. CITE the relevant cases ‘Citing cases’ does not mean writing down the name of every case that happens to deal with the general topic with which you are concerned and then detailing all the facts you can think of. or B. etc. but do not quote it in detail from any statute you may be permitted to bring into the examination hall Having cited the provision. This is at least as important as actually answering the questions of law raised by that issue. but you cannot remember its name. You should cite only the most relevant cases – there may perhaps only be one. of course. c) If the answer to an issue turns on a provision of a statute. a) Identify the issues raised by the question This is of crucial importance and gives shape to the whole answer. The point made here is that the final paragraph should pull those individual answers together and actually give the advice required.Conflict of Laws issue that you are required to deal with. b) Deal with those issues one by one as they arise in the course of the problem This. For example. it may begin something like: ‘The effect of the answer to the issues raised by this question is that one’s advice to A is 70 . Your answer should do all of the following. or C. d) If there is no statute. CITE that provision briefly. The issues should be identified in the first paragraph of the answer.

We wish you the best of luck! 71 . C and D’. B. Don’t get diverted into discussing advice to parties whom you are not required to advise. don’t leave D out. If the question says ‘Advise A.Conflict of Laws that …’ Make sure that you have answered the question completely.

Sign up to vote on this title
UsefulNot useful