0802MP 2 Conflicts

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

This Course Planner is intended to be the basis of your work on this module. The Course Planner and the college textbook are linked, and the two should be used together. The introduction will give you a brief overview of the subject areas to be studied. It is important to remember, while you learn each individual topic, that the areas all relate to one another and you should look at the subject as a whole, rather than as a series of isolated parts. The Course Planner has been divided into a number of study units which you will progress through in order. The study units each contain a topic within the subject as a whole. You should work through each study unit in order, completing the reading listed and any questions/interrograms that have been set.
Reading List
a) Prescribed reading : Clarkson and Hill The Conflict of Laws, 3rd edition. (Oxford) b) Further reading: Morris: The Conflict of Laws, McClean (6th edition) 2005 (Sweet & Maxwell) Cheshire and North: Private International Law, North and Fawcett (13th edition) 1999 (Butterworths) c) It would be useful to obtain the following book: Conflict of Laws, Briggs 2002 (Oxford) (good for preliminary overview of the subject) d) For reference: Foreign Law in English Courts: Pleading, Proof and Choice of Law, Fentiman 1998 (Oxford University Press) Dicey, Morris and Collins on the Conflict of Laws, Collins (14th edition) 2006 (Sweet &Maxwell) Civil Jurisdiction and Judgments, Briggs and Rees (4th edition) 2005 (LLP) Please note that books may have new editions published during the life span of this Planner. This list is correct at the time of going to press. d) Reference to Journals
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 Societys 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. Once you have completed the reading for each study unit, you should go back to the learning outcomes and ensure that you understand the topics to which they refer. Remember that the subject must always be looked at as a whole: if you do not understand what the learning outcomes refer to, you will need to repeat your reading. You should not progress from one study unit to the next until you understand, and have reached, the learning outcomes for that particular study unit. At the end of the module, you should understand: the nature of conflict of laws and the underlying conceptual issues; the differences between common law and European approaches to jurisdiction (and the interrelation between these approaches); issues of forum conveniens; the processes of recognition and enforcement of foreign judgments; the way in which the law governing a contract is determined.
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. 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, so that you have a good grasp of the basics before progressing further with your studies.
Essential Reading
Clarkson and Hill, chapter 1.
Other Reading
Morris:The Conflict of Laws , Morris and North (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
a) b) c) To have examined the nature and scope of conflict of laws. To have become familiar with terminology. To have distinguished between public and private international law; to have understood the meaning of comity and to have had a brief look at the history of the subject. Note: most of the topics your will read about will be covered in greater depth later.
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; [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. 2. 3. 4. 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. 5. 6. What are the sources of English conflict of laws? Explain: a) b) c) d) e) f) g) h) i) j) 7. juridical concepts or categories; localising or connecting factors; lex causae; lex fori; lex loci delicti; lex loci celebrationis; lex loci solutionis; lex domicilii; lex situs; lex successionis.
What should determine the connecting factor?
Conflict of Laws
Question
1. Do you think that the following cases contain a significant foreign element and, where they do, would it be unsatisfactory to apply English law as the lex fori? a) Jeanne, who is about to marry in a London register office, cannot speak English. b) As (a), but Jeanne has only lived in England for two weeks and she and her future husband intend to live in France. c) Paul writes a letter to The Times making a strong attack on the integrity of a Brazilian politician. d) e) Paul sends a similar letter to a Rio de Janeiro newspaper. James and Edward contract in London for the import of fruit from New Zealand to England. f) As (e), but Edward is a New Zealand exporter in Auckland and the contract is made by telex. g) Philip, an English lorry-driver, is killed in an accident in Scotland.
Conflict of Laws
Part 1: Study Unit Two

Topic
Domicile (1) Domicile of Origin; Domicile of Choice
Prologue
Domicile, like legal personality, is a legal concept created by the law and serving the laws purposes, and as such tends to be an artificial concept rather than a physical fact. This concept provides a link between an individual and a place, allowing the law governing at that linked place to be be held applicable to that individual.
Essential Reading
Other Reading
Morris: The Conflict of Laws , McClean Relevant Chapter(s) Cheshire and North: Private International Law , North and Fawcett
Relevant Chapter(s)
Conflict of Laws , Collier Relevant Chapter(s) The Conflict of Laws , Briggs Relevant Chapter(s)
Learning Outcomes
a) To have examined the concept of 'permanent home' and the numerous qualifications to it. b) c) To have examined the concept of domicile in the English sense. To have examined the functional diversification of the concept of domicile.
Conflict of Laws
Sources of Law
Statute
Domicile and Matrimonial Proceedings Act 1973, especially s3
Case Law
Annesley, Re [1926] Ch 692 Beaumont, Re [1893] 3 Ch 490 Bell v Kennedy [1868] LR 1 Sc & Div 307 Donaldson v Donaldson [1949] P 363 Fuld (No 3), In the Estate of [1968] P 675 Furse, Re [1980] 3 All ER 838 Henderson v Henderson [1967] P 77 IRC v Bullock [1976] 1 WLR 1178 (CA) Lloyd Evans (deceased), 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; [1988] 1 All ER 97 Puttick v Attorney-General [1980] Fam 1; [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
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Interrograms
1. 2. 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. Are the following domiciles possible? a) b) c) 4. 5. 6. France; Scotland; USA.
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; intention to reside for the foreseeable future; intention to reside until the other spouse dies; intention to reside for the time being; contingent intention eg intention to reside until the happening of some event; f) intention to stay.
7.
Why did Winans succeed in Winans v A-G whereas Ramsay in Ramsay v Liverpool did not?
8. 9.
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.
Is a change of nationality relevant to a change in domicile?
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Conflict of Laws
Questions
1. Morgana, domiciled and resident in her country of origin, Malia, is the perpetrator of several terrorist offences and is eagerly sought by the authorities of Malia. She secretly (and illegally) enters England and marries Modred, an English domiciliary. 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. Advise Morgana. 2. Richard, born in Canada and domiciled there for the first 20 years of his life, moves to England in order to take up a post with Skegg & Co. He does not intend to remain in England for the rest of his life and tells his friends as much. In 1950, he marries Kay, who refused ever to leave England permanently, though it is widely known that Richard (who is a year older than Kay) plans to return to Canada if Kay predeceases him. In 1970, Richard is made redundant, though because of Kay's wishes, he does not return to Canada, but buys a farm in Kent. Kay dies in 1989, 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. He is now 85. Consider the domicile of Richard in: 1950, 1975 and 2001. 3. 'By domicile we mean home, the permanent home.' Discuss.
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Conflict of Laws
Part 1: Study Unit Three

Topic
Domicile (2) Abandonment of Domicile of Choice; Domicile of Dependency
Prologue
Varying factors will determine an individuals domicile, as we have already seen. Furthermore, domicile can, and does, alter throughout an individuals lifetime, and there are certain situations whereby domicile will be automatically imposed on individuals until such time as they elect to alter it.
Reading
See the reading listed in Domicile (1).
Learning Outcomes
See Domicile (1). Also: a) b) c) d) To have examined abandonment of domicile. To have examined the domicile of dependency. To have examined the domicile of minors, lunatics and corporations. To have examined alternatives.
Sources of Law
Statute
Domicile and Matrimonial Proceedings Act 1973: ss1, 3 and 4
Case Law
Note: See also the cases listed in Domicile (1).
ABANDONMENT OF DOMICILE OF CHOICE
Jones, Re (1921) 182 NW 227
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Conflict of Laws
Lloyd Evans (deceased), 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; [1982] 1 All ER 784

MINORS
Beaumont, Re [1893] 3 Ch 490 G, 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, 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, 30 Law Commission Working Paper No 88 (1985) and Report No 168 (1987) Rogerson Habitual Residence:The New Domicile (2000) 49 ICLQ 86
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Interrograms
1. 2. How is a domicile of choice abandoned? On the abandonment of a domicile of choice, must a new domicile of choice be acquired? 3. 4. 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. 5. What is the position of married women as regards acquisition of domiciles? Compare their position with that in 1970. 6. 7. What is the effect of s1 of the DMPA 1973? What is the effect of s1 in the following situations: a) b) 8. to a domiciled Frenchman in 1975; to a domiciled Scotsman in 1972.
Does the DMPA preclude a married woman from ever acquiring her husbands domicile?
9. 10.
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, living together with child; parents unmarried, living together with child; parents unmarried at birth of child, but married subsequently; parents married, but separated, child lives with mother; as in (d), but child then goes to live with aunt; as in (d), but child goes to live with father, then moves to live with aunt; parents married, child leaves home, validly contracts marriage abroad at the age of 14; h) as in (g), but child divorces wife at 15.
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Conflict of Laws
Questions
1. Agnes was born with a domicile in the Netherlands in 1940. She lived there until 1970, except for the years 1941 to 1946, when her mother brought her to England to escape the German occupation of the Netherlands. In 1970 she married Robert, a Scottish domiciliary and in 1972, they went to Ghana, since Robert had been sent there by his employers to manage their office there. In 1975, Agnes left Robert and went to live permanently in Rhodesia. In 1978, being unhappy about the political situation in Rhodesia, she sought permission to settle in Canada. Her application was refused by the Canadian Immigration authorities, but Agnes entered Ontario in October 1979 on a visitor's visa valid for six months. She remained there after the visa had expired and decided to remain in Ontario, where she was living for good. However her presence was discovered by the authorities and she was deported from Canada. She is now in England but she still wants to live in Ontario. Trace Agnes' domicile since 1940. 2. Bob and Alice, a married couple domiciled in New York, emigrated to Canada in 1965 and settled in Quebec, intending to remain there permanently. In April 1978, a son Paul, was born there. In December 1984 Bob moved to Holland on the orders of his employers, but Alice refused to follow him and went to live in 1987, in Eire taking Paul with her. In 1990 Paul was sent to boarding school in England. In 1990 Bob decided to leave Holland for good and move to Scotland. He boarded a ferry, but just after it had left Dutch territorial waters, a number of passengers fell ill from food poisoning and the ferry returned to Holland. Bob, who was one of those passengers, died in hospital a week later. In 1993, Alice decided that she had spent long enough in Eire and left for Sweden, where she purchased a house and decided to remain there providing she could learn to speak Swedish. In 1995 Paul left school and found employment in France where he decided to live. Alice has now settled down in Sweden and is part of the community there, having begun a job as an interpreter last month. Trace the domiciles of: a) b) Bob; Alice;
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Conflict of Laws
c)
Paul.
throughout their lives to the present day. 3. In April 1990 Edna, a domiciled Irishwoman, married Bill a domiciled Englishman, in a ceremony in Dublin, intending to leave with him for England that evening. But later that same day Edna gave birth to a son, Tim, whom she had conceived by Bill some months before the wedding. Bill went to England in August 1990; Edna decided not to go there and took Tim and went to live with her mother in Scotland. Bill died on 1st January 1991. 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. Trace Tim's domicile since his birth. 4. 'If it is accepted, as seems to be the case, that the present domicile rules can be subjected to wide-ranging criticism, the question has to be asked whether the use of domicile should be abandoned in favour of some other connecting factor.' Discuss. 5. Trace Mandy's domicile birth to the present day on the following set of facts: Mandy was born in January 1980 in Scotland, the legitimate child of Candy and Andy. Candy was born in Jamaica to parents both of whom were then domiciled in Jamaica. In 1970, Candy's parents together with Candy and her sister, Sandy, emigrated to England. In 1978, Candy met and married Andy. Andy was born in Scotland in 1940 to parents both of whom were then domiciled in Scotland. In 1958, Andy came to England in search of work. He found a job in England which he has held ever since. He has been very successful in his work and has acquired substantial property in England. Andy has two children by his previous marriage who live with him. Andy would like to return to Scotland when he retires but he would also like to live near his children. When Mandy was six months old, Candy decided to go to seek her fortune in America and to leave Mandy with her sister. Candy obtained the necessary visas by telling lies about her qualifications and so entered the United States illegally. For the first six months, Candy wandered round from state to state, but in January 1981 she found a permanent job in New York where she has lived ever since.
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Conflict of Laws
Mandy has continued to live with her aunt in Scotland and has never seen Andy. 6. Trace the changes in the domicile of Alan on the following set of facts: Alan was born in France in 1914 to Nicole, an unmarried French domiciliary. Jock, his father, domiciled in Scotland, was a soldier in the British Army serving in France. In 1918, Nicole left Alan with his French grandparents and rejoined Jock in England where they subsequently married and established their matrimonial home. Alan was brought up by his grandparents but occasionally visited his parents in England. At the age of 20, Alan joined a French missionary order and became ordained as a priest, taking vows of poverty, chastity and obedience and disposing of all his property. When German forces invaded France in 1940, Alan escaped to England and served as chaplain to the Free French forces in England during the war. In 1946, Alan became a parish priest in England and served as a priest for the next 30 years in England. 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. However, all Alan's requests were rejected. In 1976, Alan contracted cancer and retired from active work. Earlier this year Alan, assured by his doctor that he had only a few months to live, decided to spend the remainder of his life where a warmer climate might alleviate his physical suffering. Accordingly, three months ago Alan went to a seminary of the missionary order in Spain where last week he died.
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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, despite the fact that English courts can generally decide cases applying foreign law. 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.
Other Reading
Relevant Chapter(s)
The Conflict of Laws , Briggs Relevant Chapter(s) Conflict of Laws , Collier Relevant Chapter(s) Civil Jurisdiction and Judgments , Briggs and Rees Relevant Chapter(s)
Learning Outcomes
a) b) c) To have examined the jurisdiction of English courts over parties and causes. To have examined service of claim forms inside and outside jurisdiction. To have examined the operation of CPR 6(III).
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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, The [1974] AC 436; [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; [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;
[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; [1983] 2 All ER 884 (HL) Attock Cement Company Ltd v Romanian Bank for Foreign Trade [1989] 1 All ER 1189 (CA) Siskina, The [1979] AC 210; [1977] 3 WLR 818
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Conflict of Laws
Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460; [1986] 3 WLR 972; [1986] 3
All ER 843 (HL) (per Lord Goff)
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; [1989] 3 All ER 14
CPR 6.20(3) NECESSARY AND PROPER PARTY
Brabo, The [1949] AC 326; [1949] 1 All ER 294 MB Pyramid Sound NV v Briese Schiffarts GmbH & Co [1993] 2 Lloyds Rep 192
Witted v Galbraith [1893] 1 QB 577

CPR 6.20(5) CONTRACT
Amin Rasheed Corpn v Kuwait Insurance Co [1984] AC 50; [1983] 3 WLR 241; [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; [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 6.20(8) TORT
Berezovsky v Forbes Inc (1998) The Times 27 November (CA) Bier v Mines de Potasse [1978] QB 708; [1976] ECR 1735
Articles
Capper Worldwide Mareva Injuntions (1991) 54 MLR 329 Collier Of Temples:Bumper Development Corporation v MPC [1992] CLJ 31
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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. 2. 3. 4. 5. 6. 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. In what circumstances will the courts grant leave to serve a claim form under CPR 6 in cases involving contractual disputes? 8. Is there one single approach to determining the place (locus delicti) where a tort has been committed? Should there be? 9. 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. What constitutes submission?
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Conflict of Laws
Questions
1. Charles wishes to bring proceedings against various parties in relation to various contracts he concluded with them. Advise him what he must do if the other party is: a) A & Co, 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; b) Attila, domiciled in Ontario but Charles has invited him to stay with him in April of this year; c) X & Co Ltd, 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; d) Y & Co Ltd, 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. 2. Under a contract made in Bulgaria and governed by Bulgarian law, A, a Bulgarian company sold and delivered to B, an English company, which owns a group of chemist shops and pharmaceutical retail outlets, a drug manufactured and packaged by A in Bulgaria. A negligently failed to warn B or prospective customers that the drug was dangerous unless certain precautions were taken in using it. X purchased the drug from B in England and after taking it, suffered severe injuries. B is in liquidation and X now brings an action for negligence against A and seeks to serve notice of the writ on A. Will the court permit X to do so? 3. 'The court may assume jurisdiction over an absent defendant, if in the action begun by writ, an injunction is sought ordering the defendant to do or refrain from doing anything in England.' (Dicey & Morris). Discuss what limits there are to this jurisdiction. 4. Does the common law give English courts excessive jurisdiction? Or insufficient jurisdiction?
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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
Other Reading
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.
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Conflict of Laws
Sources of Law
Statute
Civil Jurisdiction and Judgments Acts 1982 and 1991
Case Law
Bier BV v Mines de Potasse DAlsace 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 Frres 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 Lloyds 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 Lloyds 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 (C281/02) [2005] 2 WLR 942 (ECJ) Pearce v Ove Arup Partnership Ltd [1997] 2 WLR 779; [1997] 3 All ER 31
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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 Lloyds 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
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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. 2. 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. 4. 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, employment and consumer contracts. 6. What is exclusive jurisdiction and what is its relationship to special and general jurisdiction? 7. 8. 9. 10. Explain the provisions on prorogation of jurisdiction under the Regulation. 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. How has the Regulation been adapted for the allocation of jurisdiction within the UK? 11. What role does the European Court of Justice play in relation to the Regulation and how is a referral to it made?
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Conflict of Laws
Questions
1. Bertie owns a villa in the South of France. As Bertie can only spend the month of July at the villa, he wishes to let the villa to other people for the rest of the summer. 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. Xavier an English domiciliary signs an agreement with Bertie for the month of August. Francis, a Belgian domiciliary signs an agreement for the month of September. 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. Xavier refuses to pay the rent agreed under the agreement to Bertie. Bertie flies over to see Xavier and Xavier hits Bertie over the head, causing Bertie to suffer a head injury. Bertie now wishes to bring proceedings against both Francis and Xavier in England. Advise him. 2. 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. Philip, an Italian, comes to the UK to attend an English course lasting one month in a London College. He fails the exam at the end of the course and goes to Scotland for a month's revision before retaking the exam, then decides not to retake it but to do a two months' marketing course in London instead. He completes this course successfully and then takes a job in Northern Ireland. 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. 4. Explain the differences between the common law rules of jurisdiction and the Regulation rules. 5. Consider whether the English courts would have jurisdiction in each of the following cases: a) Daniel, a broadcaster on Radio Luxembourg who lives in Luxembourg, makes a remark in a broadcast which Peter, who lives in England,
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Conflict of Laws
regards as defamatory. The broadcast was in English and was intended to be heard mainly in England. Peter wants to sue Daniel and Radio Luxembourg for defamation. b) The Dandy company, a French company, appoints Paul as its exclusive dealer in Britain and Ireland. Paul later discovers that they have also been supplying another dealer in England. Paul wants to sue Dandy for breach of contract. c) Pat agrees to work for Dachshund AG, a German company, as their sales representative. The contract contains a choice-of-law clause in favour of German law. Pat, though an employee, is entitled to a commission. Under German law this is payable in Germany, under English law it is payable in England. The company fails to pay the commission and Pat wants to sue for it. d) Patti, an English commercial artist, does artwork for Dacapo, an Italian cosmetics firm. The work is done at Patti's studio in London and will be used for advertising in England. The contract contains a choice-of-law clause in favour of Italian law. Patti's fee is payable in Italy; under English law, it is payable in England. Dacapo fails to pay and Patti wishes to sue it. 6. Pierre, a French national resident in France, contracted with Dan, a US national resident in New York, for the delivery of goods by Dan to Pierre's place of business in France. Dan failed to deliver the goods. Advise Pierre in the following alternative situations: a) Pierre wishes to sue Dan in England for breach of contract. 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. 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. What difference would it make in (b) if the contract had provided for disputes to be resolved by the court in Geneva?
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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, there are situations where it will choose not to exercise that jurisdiction, or will not be able to exercise that jurisdiction, which we shall examine in this unit.
Essential Reading
Other Reading
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; the history of the doctrine and its application. c) To have examined the law of injunctions restraining foreign proceedings.
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Sources of Law
Statutes
Regulation 44/2001/EC; arts 2530 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, The [1974] AC 436; [1973] 2 All ER 174 Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50; [1983] 3 WLR 241; [1983] 2 All ER 884 (HL) Bank of Tokyo Ltd v Karoon [1986] 3 All ER 468; [1987] 1 QB 689 British Aerospace plc v Dee Howard Co [1993] 1 Lloyds Rep 368 Castanho v Brown and Root [1981] AC 557 Connelly v RTZ Corporation plc [1997] 3 WLR 373; [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 Lloyds Rep 585 Harrods, 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; [1986] 3 All ER 682 Purcell v Khayat (1987) The Times 23 November Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460; [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; [1981] 3 All ER 520
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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; [1998] 2 All ER 257 (HL) British Airways Board v Laker Airways Ltd [1985] AC 58; [1984] 3 All ER 39 Continental Bank v Aeakos [1994] 1 WLR 588; [1994] 2 All ER 540; [1994] 1 Lloyds Rep 505 Midland Bank plc v Laker Airways [1986] 1 QB 689; [1986] 1 All ER 527 Socit Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871; [1987] 3 WLR 59; [1987] 3 All ER 510 (PC) (per Lord Goff) (compulsory reading) South Carolina Insurance Co v Assurantie NV [1987] AC 24 (HL); [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
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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 SlaterForum Non Conveniens:A View from the Shop Floor (1988) 104 LQR 554
Interrograms
1. 2. On what basis is the Courts jurisdiction to stay actions, properly brought founded? What was the test applied to the granting of stays before The Atlantic Star? What difficulties did it cause? 3. On what basis is the doctrine of forum non conveniens, recognised by the House of Lords in The Abidin Daver, founded? 4. 5. 6. 7. Has Spiliada made any changes in the law at all? Explain the six propositions of Lord Goff in Spiliada. How is the natural forum of a dispute to be ascertained? What, in general, is the result of successfully satisfying the court, that another action concerning the same dispute has been commenced in the natural and appropriate forum for that dispute? 8. How does the test for granting injunctions to restrain foreign proceedings differ from that applied to the granting of stays? 9. 10. 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. May the English restrain proceedings in the courts of another ECstate?
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Conflict of Laws
Questions
1. 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. Have the English courts jurisdiction in the following cases? a) Jean, domiciled in France, manufactured a machine in France and sold it to Albert in England. Albert installed the machine in his factory in Bristol, where Charles, Albert's employee was injured when using it because of a defect caused by careless manufacture. Charles wishes to sue Jean. b) John, domiciled and resident in New Zealand, accepted there an offer made by Peter in English, under which John was to deliver goods from New Zealand to Japan. New Zealand law governed the contract and it was negotiated by John's agent, Fred, from his office in London. John has not delivered the goods, Peter wishes to sue 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. 3. Consider and compare the tests which the English court will apply when granting (1) stays and (2) injunctions to restrain foreign proceedings. What difference would a clause granting exclusive jurisdiction in the dispute to (a) the English courts; (b) the courts of a foreign law district, make in both these situations? 4. In February 2003, John, domiciled and resident in Oxonia, entered into a written agreement in Ruritania to purchase a manuscript of an opera with Peter, domiciled and resident in Cantabria. Peter had assured John that the manuscript was very valuable, being the original of a long-lost opera by the great Ruritanian composer, Joe Green. Peter had produced a Joe Green expert living in Ruritania to support his assurances. However, when John consulted an Oxonian valuer on his return, he was informed that the manuscript was not by Joe Green but John Brook, an obscure comptemporary. Most of the Joe Green experts live in Cantabria, though they are violently divided over the question of distinguishing Joe Green's poorer works and John Brook's best compositions. John commences an action in the High Court for damages, wishing to utilise
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the fact that he has heard that Peter has extensive properties in England. 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. John heard of this, and succeeded in serving Peter personally with a claim form before he left Heathrow. Peter's financial situation in Cantabria is uncertain, a number of his investments having proved disastrous. 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; or The contract contained a clause giving the Ruritanian Courts exclusive jurisdiction over the dispute? 5. 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?
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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, 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. In this unit, we will examine what happens in these situations.
Essential Reading
Other Reading
Relevant Chapter(s)
Learning Outcomes
a) b) To have examined the effect of foreign jurisdiction clauses. To have examined foreign judgments, including jurisdiction of the foreign courts; finality and conclusiveness of foreign judgments. c) To have examined the non-merger rule.
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Conflict of Laws
Sources of Law
Statute
Civil Jurisdiction and Judgments Act (CJJA) 1982: ss33 and 34
Case Law
FOREIGN JURISDICTION CLAUSES
El Amria, The [1981] 2 Lloyds Rep 119 Eleftheria, The [1970] P 94
Trendtex Trading Corpn v Credit Suisse [1982] AC 679; [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; [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); [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
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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; (No 2) [1983] 3 All ER 140
Vogel v R & A Kohnstamn Ltd [1973] QB 133; [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; [1993] 1 All ER 998 (HL)
Vanquelin v Bouard (1863) 15 CBNS 341

NON-MERGER RULE
Black v Yates [1991] 3 WLR 90; [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 Dcourager les Autres (1996) 112 LQR 221
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Conflict of Laws
Interrograms
1. 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 2530 of Regulation 44/2001/EC? 3. 4. 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. Explain the meaning of the non-merger rule. Are there any circumstances in which it still applies today? 6. How can a judgment be recognised or enforced at common law? What is the procedure? 7. 8. 9. 10. 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.
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Conflict of Laws
Questions
1. 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, or arbitration in, a foreign country? 2. Blue Ltd, an English company does some business in Urbania. In 1998, Blue Ltd concludes a contract with Red Ltd, an Urbanian company under which Blue Ltd is to supply a specified number of widgets to Red Ltd. Under the contract any disputes are to be referred to arbitration in Paris and the proper law of the contract is English. Red Ltd, unhappy with the poor quality and the late delivery of the widgets sues Blue Ltd in Urbania for damages for breach of contract. 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. Red Ltd now seeks to enforce this judgment in England. Advise Blue 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. 3. Do English courts apply the same jurisdictional rules to foreign courts as they do to themselves? Should they?
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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, which has rendered a final and conclusive judgment for a specific sum of money, can have that judgment enforced in England, 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.
Reading
As for Study Unit 7.
Learning Outcomes
a) b) To have considered defences. To have considered direct enforcement of foreign judgments by statute.
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
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Case Law
DEFENCES
Abouloff v Oppenheimer (1882) 10 QBD 295 British Airways Board v Laker Airways [1983] AC 58; [1984] 3 All ER 39 House of Spring Gardens v Waite [1991] 1 QB 241; [1990] 3 WLR 347; [1990] 2 All ER 990 (CA) Jacobson v Frachon (1927) 138 LT 386 Jet Holdings Inc v Patel [1990] QB 335; [1988] 3 WLR 295; [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); (No 2) [1994] 2 WLR 759; [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; [1948] 2 All ER576 (CA) Tracomin SA v Sudan Oil Seeds Co Ltd (No 1) [1983] 1 WLR 1026; (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. 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. 4. Explain the difference between estoppel as a defence and issue estoppel. What are the prerequisites for estoppel? How does the defence of fraud differ from other defences?
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5. 6. 7.
What is the purpose of the AJA 1920? What type of judgments does it apply to? Explain s9 of the AJA 1920. How is a judgment registered under the FJ(RE)A 1933 set aside? What defences are available?
Questions
1. Albert and George, both domiciled in England, had contracted with Fernando, a Ruritanian, to manage for Fernando a night club in Ruritania. Albert wholly mismanaged the business, with the result that Fernando lost a great deal of money. George took from the premises money belonging to the business. Under Ruritanian law, a plaintiff who proves wilful default in the performance of a contract is entitled to treble damages. Fernando commences separate proceedings in Ruritania against Albert and against George. Albert and George have both returned to England. The action against Albert was for damages for mismanagement and the action against George was for the return of money unlawfully taken. When he heard of the proceedings, 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. The Ruritanian court rejected these contentions and held that it had jurisdiction. Albert took no further part in the proceedings. The Ruritanian court found for Fernando and awarded treble damages on the basis of wilful default. George instructed lawyers to defend the action against him. However during the trial, Fernando suppressed an important document which might have shown that George was the true owner of the said money. In ignorance of this document, the court gave judgment against George. Fernando now seeks to enforce in England the judgments against Albert and George. Will he succeed? 2. 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?
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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, 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.
Essential Reading
Other Reading
Relevant Chapter(s)
Learning Outcomes
a) To have considered registration and enforcement of judgments under CJJA 1982. b) To have considered appeals and defences in this area.
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Conflict of Laws
Sources of Law
Statutes
Brussels and Lugano Conventions: arts 20, 27, 28 and 59 Child Abduction and Custody Act 1985 Civil Jurisdiction and Judgments Act (CJJA) 1982 Regulation 44/2001/EC; arts 3252
Case Law
A and Others (Minors), Re [1996] 1 All ER 24 De Cavel v De Cavel [1979] ECR 1055 Denilauler v SNC Couchet Frres Case 125/79 [1981] ECR 1553 De Wolf v Cox Case 42/76 [1976] ECR 1759 F (A Minor), Re [1995] 3 All ER 641 H (A Minor), Re [1994] 2 WLR 269 (CA) Interdesco SA v Nullifire [1992] 1 Lloyds Rep 180 Klomps v Michel Case 166/80 [1981] ECR 1593 L (Child Abduction: European Convention), Re [1992] 2 FLR 178 Minalmet GmbH v Brandeis Ltd [1993] ILPr 132 (ECJ) Owens Bank v Bracco (No 1) [1992] AC 443 (HL); (No 2) [1994] 2 WLR 759; [1994] 1 All ER 336 (ECJ) Pendy Plastic Products v Pluspunkt [1982] ECR 2723
S (Minors: Abduction: Wrongful Retention), Re [1994] 2 WLR 228 Orams v Apostolides [2006] EWHC 2226, Times 22 September 2006
Articles
Briggs Foreign Judgments:More Surprises: Owens Bank Ltd v Bracco (No 1) (1992) 109 LQR 549 Fentiman Judgments, 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
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Conflict of Laws
Bracco (No 2) (1994) 110 LQR 386
Interrograms
1. 2. How is a judgment registered under the CJJA 1982. What differences exist? Compare the jurisdiction requirements with the enforcement of judgments requirements under the CJJA 1982. What differences exist? 3. Is the CJJA 1982 in relation to Judgments exclusive or is it an alternative to the common law rules? 4. 5. 6. What is the position in relation to ex parte orders? Explain the procedure of enforcement under the Act. 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. 8. What defences are available under art 34? What defences are available under art 35?
Questions
1. Jean, a resident and national of France, sells vintage cars. Yanks Ltd, a company incorporated in New York, agrees to buy one of Jean's cars. Frank, an Englishman dealing in vintage cars, agrees to buy another of Jean's cars. However both contracts fail because both Yanks Ltd and Frank refuse to pay under the contract. Jean starts proceedings against both parties in separate proceedings in France. Frank is notified of the proceedings and he appears to argue his defence. His main reason for not paying under the contract is that Jean fraudulently represented that the car was a 1929 model. 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. The French court rejects his submission and awards damages to Jean. Yanks Ltd is notified of the French proceedings against it two days before the hearing. This is because Yanks Ltd never gave their correct trading address to Jean. Yanks Ltd appear to contest jurisdiction and also to claim that the car is not exactly what it agreed to purchase. The French court rejects these submissions
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and gives judgment in Jean's favour. Frank fears that Jean may try to enforce the judgment against him in England and he starts to remove his assets. He is thinking of moving some of his assets to Denmark and some to Russia. Jean now wishes to have both judgments enforced 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. He seeks your advice. He also wishes to enforce the judgment against Frank and seeks your advice on what he should do. 2. X and Y were both residents in Oxonia. In 2002 by a contract concluded there but expressed to be governed by English law he sold and delivered a painting to Y for 10,000, which Y did not pay. In the end of 2002 Y came to live in England, and in 2003 X started an action in an Oxonian country court claiming the price of 10,000. 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, and (b) (correctly) that under Oxonian law the county court could not hear the case where the amount exceeded 5,000. These arguments were dismissed and counsel withdrew. The judge awarded X the following (i) 2,000 punitive damages, which he erroneously thought English law allowed and (ii) 1,000 which X would have to pay back as VAT in Oxonia and (iii) the price of 10,000. X now seeks to enforce the judgment in England. a) b) 3. Advise Y what defences are and are not available to him. As (a), but Oxonia is really Italy.
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; under the Foreign Judgments (Reciprocal Enforcement) Act 1933; under Regulation 44/2001/EC.
4.
What are the advantages of enforcement under: a) b) The 1933 Act? Regulation 44/2001/EC?
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5.
The Bank of Utopia obtained judgment in Utopia against B, a domiciled Utopian national, resident in England but carrying on part of his business in Utopia. The judgment was for breach of an agreement whereby B had guaranteed a loan made by the bank to C. The contract of guarantee contained a clause submitting all disputes arising out of it to arbitration in Utopia. It appears that: a) B did not receive the proper period of notice of the proceedings required by Utopian law; b) that the Utopian court assumed, incorrectly, that English law was the same as Utopian law and, purporting to apply the former, ignored a conclusive defence which would have been available to B under English law; and c) that one of the witnesses of the bank had given perjured evidence, having been paid to do so by C. The bank seeks your advice as to whether the judgment will be recognised and enforced in England where B has considerable assets. What difference would it make to your answer if Utopia was a member of the EC?
6.
Sally, a commodity dealer domiciled and resident in England, agrees to sell a consignment of soya beans to Boris, a Russian importer. The contract contains an English jurisdiction clause and specifies delivery in St Petersburg, Russia, in October 2003. Boris claims that the soya beans were contaminated and he sues Sally in Russia. Sally enters a conditional appearance and argues that, in view of the jurisdiction clause, the Russian court ought to stay the proceedings. The Russian court refuses to do this and Sally then withdraws from the proceedings. Boris obtains a default judgment which he now wishes to enforce in England. 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?
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Part 2: Study Unit Ten

Topic
Choice of Law Process Characterisation and Renvoi
Prologue
Before a court can decide any issue, it must establish which category that issue falls into so that it can then apply the relevant choice of law.
Essential Reading
Clarkson and hill, chapters 1 and 12.
Other Reading
Relevant Chapter(s)
Learning Outcomes
a) To have examined the concept of characterisation and the criteria by which a problem is characterised. b) To have considered the renvoi: interpretation of law in relation to lex situs and lex domicilii. c) To have considered the resolution of incidental questions concerning international facts.
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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, 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; [1983] 2 All ER 884 Annesley, Re [1926] Ch 692 Askew, Re [1930] 2 Ch 259 Collier v Rivaz (1841) 2 Curt 855 Kotia v Nahas [1941] AC 403 OKeefe, Re [1940] Ch 124 R v Brentwood Registrar of Marriages, ex parte Arias [1968] 2 QB 956 Ross, Re [1930] 1 Ch 377 Taczanowska v Taczanowski [1957] P 301 Vita Food Products v Unus Shipping Co [1939] AC 277
Problem of Incidental or Preliminary Question Lawrence v Lawrence [1985] 3 WLR 125; [1985] Fam 106 Padolecchia v Padolecchia [1968] P 314
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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 Lloyds 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. 2. 3. 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. 5. 6. 7. 8. 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. Consider the operation of renvoi in the context of the following factors: a) b) c) 10. lex situs; proper law of the contract; law of the domicile.
What do you consider (if anything) to be a convincing argument against the use of renvoi?
11. 12. 13.
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?
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14. 15.
What are the consequences of not pleading/proving foreign law? Who may be called as an expert to prove foreign law?
Questions
1. H and W, both domiciled in England, go through a ceremony of marriage by proxies in Urbania. By Urbanian law, formalities of marriage are governed by the lex loci celebrationis , capacity to marry is governed by the law of the domicil; a challenge to the validity of a marriage on the ground that it was by proxy is regarded as raising a question of capacity; and Urbanian domiciliaries have capacity to contract such marriages. Will the marriage be treated as valid in England? 2. P sues D in England for negligence resulting from a street accident in Franconia. P and D are Franconian nationals, domiciled and at the time of the accident resident in Franconia. They are now both temporarily resident in England. P's case is that he was injured as a result of having to brake hard when D, a pedestrian, suddenly ran in front of his car. The possibly relevant rules of English and of Franconian law differ in only two respects: (a) under Franconian law, reasonableness in the context of negligence is treated as a matter of law, and determined by a judge; (b) under Franconian law, there is a rebuttable, but compelling presumption of law that when a motorist and a pedestrian are involved in an accident, the motorist must have been negligent. The English trial judge sitting with a jury gives no instruction about the Franconian presumption, 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 jury finds for the plaintiff and the defendant appeals. Discuss. 3. 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, or (b) would be so treated even in a private international law context? 4. 'The dispute ... is (about) what is meant by the law of the domicile? Does the
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phrase ... mean only that part of the domiciliary law which is applicable to nationals of the country of domicile ... or does it mean the whole law of the country of domicile, including its rules of private international law administered by its tribunals?' Discuss in relation to the approach adopted by the English courts. 5. Consider the view that the doctrine of renvoi has no place in the modern world of international transactions. 6. 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, what view of renvoi should be held? 7. 'English courts should characterise according to the only system of law they understand, namely, English law.' Do you agree? Does this approach have any limitations?
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Part 2: Study Unit Eleven

Topic
Contract (1) Jurisdiction Choice of Law Generally
Prologue
A contractual obligation cannot exist in vacuo; it must draw its existence from a legal system which specifies that in the particular circumstances a contract exists. In this unit, we shall examine how the applicable law of a contract is established.
Essential Reading
Clarkson and Hill chapters 3 and 5.
Other Reading
Relevant Chapter(s)
Learning Outcome
To have examined choice of law in contract.
Sources of Law
Statutes
American Restatement (2nd) (Conflicts): paras 187 and 188 Rome Convention: arts 1, 2, 3, 4, 5 and 6
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Case Law
Amin Rasheed v Kuwait Insurance [1984] 1 AC 50; [1983] 3 WLR 241; [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 Lloyds 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, Re [1961] AC 1007 Vita Foods v Unus Shipping [1939] AC 277
Whitworth St Estates v Miller [1970] AC 583; [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
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Interrograms
1. In what circumstances can a claim form be served out of jurisdiction in a contract case? What restrictions on this exist? 2. 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 6.20? 3. 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. 6. 7. 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. 8. Will the language and form of a standard form contract used internationally, be conclusive as to the applicable law? 9. Does law as in applicable law refer to the domestic or conflicts rules of the relevant system of law?
Questions
1. X was a Scottish company with its principal place of business in Glasgow, but with branches in England and Wales where it sold silver polish. It negotiated in Italy, an agreement with Y, a Belgian company, under which X would have the sole right to sell in the United Kingdom silver polish produced by Y. The silver polish would be sold to X by Y and payment would be made to Y in Belgian francs. 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. A dispute has now arisen between X and Y and an action is brought in the High Court in London. 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. X Co, an English company enters into a contract with Y Co, a French company, in which the French company undertakes to repair X Co's wharf in Le Havre. The contract is in standard English form written in English, in terms of English
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law it having been proved impracticable to draft the contract in French form, since a French equivalent standard form did not then exist. There is a standard English arbitration clause and an Englishman is appointed as the supervising architect. The lex loci contractus is France, at Y Co' office. 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. By French law, 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. X Co wish an English court to reverse this decision. Advise X Co as to this possibility. In this case, how far would it make a difference, if any, were the contract to contain a clause stating that the applicable law of the contract was English law?
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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, and in this unit, we shall look at those areas in which the applicable law is either not applicable at all, or it is questionable whether or not it is applicable.
Essential Reading
Other Reading
Relevant Chapter(s)
The Conflict of Laws , Briggs Relevant Chapter(s) Clarkson and Hill, chapter 5.
Learning Outcomes
a) To have considered limits on the role of the applicable law by common law and under statute. b) To have considered the creation of the obligation, in particular the fact of the agreement, the reality of the agreement and consideration and other essential requirements apart from form.
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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, 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 Lloyds 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
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Interrograms
1. What limits exist on the freedom of contractual parties to choose the applicable law of the contract? 2. 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. 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. 4. 5. 6. 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. 7. Should the courts adopt a generally subjective or objective approach to ascertaining the putative proper law?
Questions
1. 'In all the courts of the United Kingdom, 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 ... the Rules are to be given supremacy over every other provision of the bill of lading.' Lord Denning in The
Hollandia .
Discuss. 2. A, aged 20, resident and domiciled in Saxonia, posts a letter to B, who is resident and domiciled in England, offering to sell his car to B. A also promises to keep this offer open for seven days. A is an infant under Saxonian law. A term of the offer is that the contract should be governed by Saxonian law. Three days later, B posts a letter of acceptance to A. Before he receives this, A sends B a telegram revoking the offer. Under Saxonian law, a promise to keep an offer open is binding without consideration, acceptance is valid only when received and infancy is a good defence to an action for breach of contract. Advise B, who wishes to sue A in England for breach of contract.
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3.
On 30 April 2001, Jim aged 19, domiciled and resident in Urbia, wrote a letter in English to Tom, aged 25 and domiciled and resident in England, offering to sell Tom a case of rare vintage champagne which he had in Urbia for 5,000. 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. Indeed Tom wrote to Jim on 4 May accepting the offer, but his letter was lost in transit and failed to reach Jim. On 20 May Jim sold the champagne to Ted who also lived in Urbia. By Urbian law, capacity to contract is acquired at the age of 21: silence of the offeree in such circumstances constitutes acceptance of the offer; an acceptance by post is only effective upon receipt by the offeror; and a promise to keep an offer open for a stated period is binding upon the offeror. Under Urbian law, an action for breach of contract must be commenced within two years of the breach (under English law within six years). 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. You are instructed to advise Jim what defences he may, and may not successfully plead to Tom's claim.
4.
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.
Answer the following on the alternative assumptions that the Contracts (Applicable Law) Act 1990 (1) does and (2) does not apply. a) Orville, aged 20, domiciled in England, writes to Blofeld, a fishing-tackle maker in Danelandia, requesting a copy of Blofeld's mail order catalogue which has been advertised in an English magazine. Under Danelandian law contracts made by a person under the age of 25 cannot be enforced against him. Blofeld despatches a catalogue and Orville places an order commissioning Blofeld to make a fishing reel to Orville's specifications. Amongst the details included in Orville's order are his height, weight and age. Blofeld does not reply to the letter but begins work on the reel. Under Danelandian law silence constitutes acceptance of an offer sent through the post. 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. Discuss.
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How far, 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, domiciled and carrying on business in England, writes to Nutt, a Brazilian businessman, offering to buy drugs from Nutt's Spanish laboratory. 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. Nutt agrees to sell the drugs at a price which reflects the avoidance of the controls. 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. Nutt refuses to complete the contract.
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Part 2: Study Unit Thirteen

Topic
Contract (3) Formal Validity Capacity Illegality Other Matters Affecting Obligation
Prologue
In this unit, we shall further examine the somewhat sticky situations where the applicable law of the contract cannot be applied, or is difficult to apply, to certain elements of the contract.
Essential Reading
Clarkson and Hill, chapters 5 and 6(v). )
Other Reading
Relevant Chapter(s)
Conflict of Laws , Collier Relevant Chapter(s) Jaffey on the Conflict of Laws , Clarkson and Hill Relevant Chapter(s)
Learning Outcomes
a) b) To have examined issues relating to formal validity, capacity and illegality. To have examined other matters affecting obligation, including material validity, performance, agency, interpretation and discharge.
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Sources of Law
Statutes
Rome (Contracts) Convention: arts 8, 9, 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; [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; [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, 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
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Mount Albert BC v Australian Temperance & General Mutual Life Assurance Society
[1938] AC 224; [1937] 4 All ER 206
DISCHARGE
Jacobs v Credit Lyonnais (1884) 12 QBD 589
United Railways, Re [1961] AC 1007; [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. What law or laws governs the issue of formal validity of a contract? What matters may properly be characterised as formal requirements? 2. 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. If capacity is to be ascertained either wholly or partly, by reference to the proper law, should that proper law be subjectively or objectively ascertained? 4. 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. 6. 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. lex loci contractus; lex loci solutionis.
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.
What law governs the discharge of a contract by a) performance
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b) 9.
frustration?
On what basis do English conflicts rules distinguish between: a) b) The extent of the obligation. The mode and manner of its performance?
10.
What matters are included in the mode/manner category?
Questions
1. Ronald, a domiciled Ruritanian aged 16, goes on holiday to Floxica, where he enters into a contract for the sale of a motorcycle with Herbert (a Floxican dealer). However, 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. This has not been done. By Floxican law, contracts may be concluded validly at the age of 16 which is the Floxican age of majority. How would you advise Herbert, 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. Thomas, a domiciled Englishman, is aged 19. He makes a trip to Guatemala, where he purchases a case of the local spirit on credit. By Guatemalan law, 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). Thomas wishes to enforce the contract, but the Guatemalan liquor firm wish to sell the spirit to Joseph, a Panamanian, who is willing to pay more. Thomas sues in England and (assuming the English court has jurisdiction) the Guatemalan Co relies on his incapacity as a defence. Write an opinion as to the outcome of this dispute. 3. Last March a written contract was entered into by Neale, a London supplier, and Kel, a Danish businessman, whereby Neale agreed to sell to Kel a consignment of 200 crates of brandy to be exported from Ruritania to Oxonia. Clause 3 of the contract stated, 'this contract is governed by the law of the kingdom of Cantabria'. The contract was concluded in Dunelmnia where both Neale and Kel were attending a one-day conference. By Dunelmnian law, a contract between non-Dunelmnian residents is void unless made under seal, which this contract was not. Cantabrian law has no such requirement.
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It is known to both parties that Ruritanian law forbids the export of alcohol and the contract by that law is illegal. However the brandy is secretly shipped from Ruritania. Before it arrives in Oxonia, however, the Oxonian legislature enacts a law (with immediate effect) prohibiting the sale, importation or other dealings with alcohol for two years. 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. Kel instructs Neale to deliver the goods to Esbjerg in Denmark in Denmark. 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. 4. X, carrying on business in France, agrees with Y, carrying on business in Germany that X shall deliver to Y a quantity of wine, fob Bordeaux. 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, the French government passes a decree prohibiting the further export of wine from France. 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, but voidable by French law. The French decree excused X from performing the contract. Advise X. Would your answer be different if the contract were governed by (a) French law; or (b) English law? 5. 'The Rome Convention has followed the English notion of the proper law of the contract very closely.' Discuss.
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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. In any case, skill in revision and examination techniques is an art best acquired by actual practice. The more you study, the more you devise your own short cuts for efficient preparation for exams. Unfortunately, it is only when you actually sit the examination that you can see whether your particular method of revision is successful. If it is not, it is an expensive and frustrating way to find out. While it is true that examination techniques are best learned actually sitting examinations, it is not necessary to wait until the real thing. Mock examinations, tackled under realistic conditions, can be very helpful. For example, select a question and, without looking at the skeleton answer (if there is one), write out your own. You can use the questions set throughout this Planner to stage your own practice run. Or, if you have time, tackle a full quota of four or five questions at once as a mock examination. The short list of dos and donts 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.
Do's
Before the examination a) Do plan ahead and make your plans increasingly detailed as you approach the examination date. Allocate enough time for each topic to be studied, bearing in mind the time actually available to you before the exams. b) c) Do exercise constant self-discipline, especially if studying at home. Do, during your course of study, especially once revision starts, constantly test yourself orally and in writing. d) Do keep up-to-date. While examiners do not require familiarity with changes in the law during the three months prior to the examination, it obviously creates a good impression to show you are acquainted with any recent changes. Sources that you
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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; cumulative indices to law reports such as the All England Law Reports, and such sources as the Law Societys Gazette and the Legal Executive Journal. e) Do familiarise yourself with past examination papers, and try at least one mock examination well before the date of the real thing.
In the examination room f) Do read the instructions on the examination paper carefully. While any last minute changes are unlikely such as the introduction of a compulsory question it has been known to happen. g) Do read the questions carefully. Analyse problem questions work out what the examiner wants. PLAN YOUR ANSWER before you start to write. h) Do note mark allocations (if any) on the question paper. 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. i) Do allow enough time to re-read your answers. A misplaced word (a not in the wrong place, for example) may turn a good answer into gibberish.
Don'ts
a) Dont finish the syllabus too early constant revision of the same topic leads to stagnation but DONT leave revision so late that you have to cram. If you are the sort of person who works better to a deadline make it a realistic one! b) Dont try to learn by rote. In particular, dont try to reproduce model answers by heart. Learn to express the basic concepts in your own words. c) Dont 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. and above all d) DONT PANIC!
Finally, it may be useful at this juncture to say a few words about the structure of your answers in the examination. Almost all examination problems raise more than one legal
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Conflict of Laws
issue that you are required to deal with. Your answer should do all of the following. a) Identify the issues raised by the question This is of crucial importance and gives shape to the whole answer. It indicates to the examiner that you appreciate what he is asking you about. This is at least as important as actually answering the questions of law raised by that issue. The issues should be identified in the first paragraph of the answer. b) Deal with those issues one by one as they arise in the course of the problem This, of course, is the substance of the answer and where study and revision pays off. c) If the answer to an issue turns on a provision of a statute, CITE that provision briefly, but do not quote it in detail from any statute you may be permitted to bring into the examination hall Having cited the provision, show how it is relevant to the question. d) If there is no statute, or the meaning of the statute has been interpreted by the courts, 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. You should cite only the most relevant cases there may perhaps only be one. No more facts should be stated than are absolutely essential to establish the relevance of the case. If there is a relevant case, but you cannot remember its name, it is sufficient to refer to it as one decided case. e) Whenever a statute or case is cited, the title of the statute or the name of the case should be underlined This makes the examiners job much easier because he can see at a glance whether the relevant material has been dealt with, and it will make him more disposed in your favour. f) Having dealt with the relevant issues, summarise your conclusions in such a way that you answer the question A question will often say at the end simply Advise A, or B, or C, etc. The advice will usually turn on the individual answers to a number of issues. The point made here is that the final paragraph should pull those individual answers together and actually give the advice required. For example, it may begin something like: The effect of the answer to the issues raised by this question is that ones advice to A is
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Conflict of Laws
that Make sure that you have answered the question completely. If the question says Advise A, B, C and D, dont leave D out. Dont get diverted into discussing advice to parties whom you are not required to advise. We wish you the best of luck!
71

0802MP 2 Conflicts

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0802MP 2 Conflicts

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Module Planner LLB (Hons)

Revision and Examination Technique

How to Use this Planner

British Year Book of International Law Cambridge Law Journal

Part 1: Study Unit One

What should determine the connecting factor?

Part 1: Study Unit Two

Is a change of nationality relevant to a change in domicile?

Part 1: Study Unit Three

Jones, Re (1921) 182 NW 227

Lloyd Evans (deceased), Re [1947] 1 Ch 695

Raffenel, In the Goods of (1863) 3 Sw & Tr 49

Gray v Formosa [1963] P 259

IRC v Duchess of Portland [1982] Ch 314; [1982] 1 All ER 784

Beaumont, Re [1893] 3 Ch 490 G, Re [1966] NZLR 1028 Henderson v Henderson [1967] P 77

Gasque v IRC [1940] 2 KB 80

Articles and Reports

Part 1: Study Unit Four

Black v Yates [1991] 3 WLR 90

Hatrex International Transport Case C398/92 [1994] IL Pr 264

Dulles Settlement (No 2), Re [1951] Ch 842

Feyerick v Hubbard (1902) 71 LJKB 509

Witted v Galbraith [1893] 1 QB 577

Johnson v Taylor [1920] AC 144 Oppenheimer v Rosenthal [1937] 1 All ER 23

etc [1994] CLJ 244

Part 1: Study Unit Five

Zelger v Salinitri Case 56/79 [1984] ECR2397

Articles and Reports

Naviera SA [1994] CLJ 241

Part 1: Study Unit Six

LIS ALIBI PENDENS AND STAYING ACTIONS UNDER THE CONVENTION

Scherrens v Maenhout & Others Case 158/57 [1988] ECR 3791

Turner v Grovit [2002] 1 All ER 960 (HL)

Publications Ltd (1994) 110 LQR 325

Part 1: Study Unit Seven

El Amria, The [1981] 2 Lloyds Rep 119 Eleftheria, The [1970] P 94

Showlag v Mansour [1994] 2 WLR 615; [1994] 2 All ER 129 (PC)

Vogel v R & A Kohnstamn Ltd [1973] QB 133; [1971] 2 All ER 1428

Scott v Pilkington (1862) 2 B & S 11

Vanquelin v Bouard (1863) 15 CBNS 341

Black v Yates [1991] 3 WLR 90; [1991] 4 All ER 722 (QBD)

Part 1: Study Unit Eight

Vervaeke v Smith [1983] 1 AC 145

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 (HL)

Vervaeke v Smith [1983] 1 AC 145

Part 1: Study Unit Nine

(No 2) [1994] CLJ 239

Bracco (No 2) (1994) 110 LQR 386

Part 2: Study Unit Ten

Ogden v Ogden [1908] P 46

Glencore International AC v Metro Trading Inc [2001] 1 Lloyds LR 283

11. 12. 13.

Part 2: Study Unit Eleven

Whitworth St Estates v Miller [1970] AC 583; [1970] 1 All ER 976

Part 2: Study Unit Twelve

Vita Food Products v Unus Shipping [1939] AC 277

Part 2: Study Unit Thirteen

Leroux v Brown (1852) 12 CB 801

Sottomayer v De Barros (No 1) (1877) LR 3 PD 1

Vita Food v Unus Shipping [1939] AC 277

Jacobs v Credit Lyonnais (1884) 12 QBD 589

Jacobs v Credit Lyonnais (1884) 12 QBD 589

United Railways, Re [1961] AC 1007; [1960] Ch 52