The Legal Position of Aliens in National and International Law in the United Kingdom

This series of two articles provides a comparative overview of the position in the common-law conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, is investigated in part I. Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom is also discussed.Part II will deal with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). Part II also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

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Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa

Obiter ◽

10.17159/obiter.v41i1.10546 ◽

2020 ◽

Vol 41 (1) ◽

pp. 10-44

Author(s):

Eesa A Fredericks

Keyword(s):

United Kingdom ◽

North America ◽

International Law ◽

South African ◽

Common Law ◽

Private International Law ◽

Conflict Of Laws ◽

The United Kingdom ◽

Legal Position ◽

The Common

This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

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The International Law Standard in the Statutes of Australia and the United Kingdom

The American Journal of International Law ◽

10.2307/2200735 ◽

1979 ◽

Vol 73 (4) ◽

pp. 628-646 ◽

Cited By ~ 1

Author(s):

James Crawford

Keyword(s):

United States ◽

United Kingdom ◽

New Zealand ◽

International Relations ◽

International Law ◽

20Th Century ◽

Foreign Affairs ◽

Robert Wilson ◽

The United Kingdom ◽

International Role

In a series of articles in this Journal, Professor Robert Wilson drew attention to the incorporation of references to international law in United States statutes, a technique designed to allow recourse to international law by the courts in interpreting and implementing those statutes, and, consequently, to help ensure conformity between international and U.S. law. The purpose of this article is to survey the references, direct and indirect, to international law in the 20th-century statutes of two Commonwealth countries in order to see to what extent similar techniques have been adopted. The choice of the United Kingdom and the Commonwealth of Australia as the subjects of this survey is no doubt somewhat arbitrary (although passing reference will be made to the legislation of Canada and New Zealand). But the United Kingdom, a semi-unitary state whose involvement in international relations has been substantial throughout the century, and the Commonwealth of Australia, a federal polity with substantial legislative power over foreign affairs and defense -whose international role has changed markedly since 1901, do provide useful examples of states with constitutional and legislative continuity since 1901, and (as will be seen) considerable legislative involvement in this field.

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Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

Studies in Logic Grammar and Rhetoric ◽

10.2478/slgr-2013-0004 ◽

2013 ◽

Vol 32 (1) ◽

pp. 67-74

Author(s):

Katarzyna Bagan-Kurluta

Keyword(s):

United Kingdom ◽

International Law ◽

Case Law ◽

Functional Method ◽

Internal Source ◽

Private International Law ◽

Uniform Approach ◽

The United Kingdom ◽

Foreign Law ◽

The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

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The Chilcot Report

How International Law Works in Times of Crisis ◽

10.1093/oso/9780198849667.003.0017 ◽

2019 ◽

pp. 273-288

Author(s):

Stephen Bouwhuis

Keyword(s):

Decision Making ◽

United Kingdom ◽

International Law ◽

Legal Practice ◽

Ethical Aspects ◽

Legal Advice ◽

The United Kingdom ◽

General Relevance ◽

The Government

The inquiry by the United Kingdom into its decision to intervene in Iraq is one of the longest running and most comprehensive examinations of government decision-making. In particular, the inquiry examined in detail the processes by which legal advice was provided to and formed a part of the decision by the Government of the United Kingdom to intervene in Iraq. Through this lens, the current chapter examines what the inquiry illustrates about the general relevance of international law to the decision to intervene in Iraq and more broadly what illustrates about the role of international law in decision-making more generally. In particular, the chapter pertains to the practical and ethical aspects providing international legal advice to government as well as the nature of government legal practice more generally.

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Corporations

The Conflict of Laws ◽

10.1093/oso/9780198838500.003.0009 ◽

2019 ◽

pp. 334-352

Author(s):

Adrian Briggs

Keyword(s):

United Kingdom ◽

International Law ◽

Private International Law ◽

The United Kingdom ◽

Insolvency Regulation ◽

Principal Effect ◽

European Regulations ◽

English Law ◽

Insolvency Proceedings

This chapter discusses the private international law of insolvency and bankruptcy. Prior to Exit Day, the private international law of insolvency and bankruptcy was covered in part by two European Regulations: the Insolvency Regulation 1346/2000, and the recast Insolvency Regulation 2015/848. According to the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019 No 146, a fragment of Regulation 2015/848 is retained as English law, but otherwise it is not retained as English law. The principal effect of this is that the court will continue to have jurisdiction to open insolvency proceedings when the debtor’s centre of main interests is in the United Kingdom. Otherwise Part 1 of the Schedule to SI 2019 No 146 provides that the recast Insolvency Regulation shall not have effect in the United Kingdom. Consequential amendment is made to secondary legislation. Transitional provisions are made to provide for the continued application of the Regulations after Exit Day in the case of insolvency proceedings opened before Exit Day.

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Non-Contractual Obligations

The Conflict of Laws ◽

10.1093/oso/9780198838500.003.0006 ◽

2019 ◽

pp. 244-277

Author(s):

Adrian Briggs

Keyword(s):

United Kingdom ◽

International Law ◽

Private International Law ◽

Eu Law ◽

Eu Legislation ◽

The United Kingdom ◽

The Law ◽

Contractual Obligations

This chapter discusses the law on non-contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome II Regulation, Regulation 864/2007, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome II Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome II Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

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The Lex Fori

The Conflict of Laws ◽

10.1093/oso/9780198838500.003.0004 ◽

2019 ◽

pp. 172-194

Author(s):

Adrian Briggs

Keyword(s):

Public Policy ◽

United Kingdom ◽

International Law ◽

Private International Law ◽

English Court ◽

Conflict Of Laws ◽

The United Kingdom ◽

Foreign Law ◽

The Law

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

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Introduction

The Conflict of Laws ◽

10.1093/oso/9780198838500.003.0001 ◽

2019 ◽

pp. 1-42

Author(s):

Adrian Briggs

Keyword(s):

European Union ◽

United Kingdom ◽

International Law ◽

Legal Framework ◽

Private International Law ◽

The European Union ◽

The United Kingdom ◽

The Common ◽

Law And Legislation

This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.

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ABORTION IN NORTHERN IRELAND AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: REFLECTIONS FROM THE UK SUPREME COURT

International and Comparative Law Quarterly ◽

10.1017/s0020589319000034 ◽

2019 ◽

Vol 68 (2) ◽

pp. 477-494

Author(s):

Bríd Ní Ghráinne ◽

Aisling McMahon

Keyword(s):

Human Rights ◽

United Kingdom ◽

Northern Ireland ◽

Supreme Court ◽

International Law ◽

European Convention ◽

The United Kingdom ◽

The Supreme Court ◽

Uk Supreme Court ◽

The Uk

AbstractOn 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.

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