Acta Et Agenda

1977 ◽  
Vol 36 (1) ◽  
pp. 47-61
Author(s):  
K. Lipstein
Keyword(s):  
International Law ◽  
English Language ◽  
Common Law ◽  
Private International Law ◽  
Foreign Law ◽  
Domestic Courts ◽  
The Common ◽  
English Law ◽  
Greek Scholar

When I was first called upon to lecture during the darkest days of the war in 1941, because Hersch Lauterpacht was on some mission, I was still surrounded by my own teachers—Buckland, Duff, Gutteridge and McNair (Hazeltine had left). Of these Gutteridge and McNair influenced me most—the former by convincing me that foreign law was well worth studying, if not for its own sake, then in order to test the validity of one's own cherished notions and established techniques and to acquire the inspiration for new solutions, but not in order to discover an all pervading droit commun legislatif. McNair impressed upon me the reality of the rules of international law in the practice of states and in the administration of law by domestic courts. Not monism of a doctrinaire kind, but the age old tradition of the common lawyer to interpret English law so as not to conflict with international law was his inspiration, which has guided me ever since. I must not omit two other formative influences from times long passed. My teachers in Berlin included the last “Pandectist” (Th. Kipp), the broadly based Romanist, Greek scholar and modern comparatist as well as innovator of private international law (Rabel), and the superb exponent of private and private international law (M. Wolff) whose nephew, I am happy to think, will continue the propagation of the work which has been carried out in Cambridge since 1930 by Gutteridge, Hamson and myself. Gutteridge, Rabel and Wolff, whose works in the English language have enriched the fund of the common law, probably gave me the foundations on which most of my own work is based.

Public Policy in the Conflict of Laws: a Chinese Wall around Little England?

1996 ◽  
Vol 45 (3) ◽  
pp. 633-661 ◽  
Author(s):  
Nelson Enonchong
Keyword(s):  
Public Policy ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Foreign Law ◽  
The World ◽  
The Common ◽  
As If

The English courts have often incurred the reproach of undue insularity in their attitude to foreign law.1 A common gripe is that they have failed to recognise that there is a world elsewhere, and that England is not “a legal island”.2 Savigny, we are told,3 was moved to lament over the fact that although in other branches of knowledge there was an internationalist outlook in England, in the field of jurisprudence alone it “remained divided from the rest of the world, as if by a Chinese wall”. Recently it has been suggested that “The foundation of this Chinese wall… lay … in an unquestioning belief in the superiority of the common law and its institutions, at least in England.”4 It would be unsafe to affirm that the charge of insularity has always been without foundation. The “Little England”5 attitude of mind, Roskill LJ reminds us,6 was “once proclaimed in the phrase ‘Athanasius contra mundum’”. And it should occasion no surprise that the examples commonly advanced to substantiate the charge are usually drawn from private international law.7

RE FLIGHTLEASE: THE ‘REAL AND SUBSTANTIAL CONNECTION’ TEST FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS FAILS TO TAKE FLIGHT IN IRELAND

2014 ◽  
Vol 63 (1) ◽  
pp. 197-212 ◽  
Author(s):  
David Kenny
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
The Real ◽  
Recognition And Enforcement ◽  
The Common

AbstractThe common law rules for recognition and enforcement of foreign judgments were radically reformulated by the Canadian Supreme Court in Beals v Saldanha. Few other common law jurisdictions have considered whether or not to follow Canada in this development in private International Law. In 2012, the Irish Supreme Court definitively rejected the Canadian approach. This note examines the judgment in that case, and assesses the reasoning of the Irish Court.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

Ascertaining the Statutory Lex Loci Delicti: Certain Difficulties Under the Private International Law (Miscellaneous Provisions) Act 1995

1998 ◽  
Vol 47 (1) ◽  
pp. 205-211 ◽  
Author(s):  
Barry J. Rodger
Keyword(s):  
International Law ◽  
Common Law ◽  
General Concept ◽  
Primary Role ◽  
Private International Law ◽  
Primary Rule ◽  
The Face ◽  
Degree Of Certainty ◽  
Major Reform ◽  
The Common

The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.

scholarly journals CONTRACTUAL CAPACITY AND THE CONFLICT OF LAWS IN COMMON-LAW JURISDICTIONS (PART 1): THE UNITED KINGDOM

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eesa A Fredericks
Keyword(s):  
United Kingdom ◽  
International Law ◽  
South African ◽  
Common Law ◽  
The United States ◽  
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 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.

Part V Financial Wrongdoing and Private International Law, 14 Money Had and Received

2017 ◽  
Author(s):  
Douglas Zachary ◽  
Bodnar Andrew
Keyword(s):  
International Law ◽  
Common Law ◽  
Strict Liability ◽  
Banking System ◽  
Private International Law ◽  
International Banking ◽  
Unjust Enrichment ◽  
The Common ◽  
Financial Wrongdoing

This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

“Le Droit Subjectif” and English Law

1987 ◽  
Vol 46 (2) ◽  
pp. 264-286 ◽  
Author(s):  
Geoffrey Samuel
Keyword(s):  
English Language ◽  
Common Law ◽  
German Word ◽  
English System ◽  
The Common ◽  
English Law ◽  
Technical Terms

Some years ago Professor Lawson reminded a Continental audience that “[i]n the English language there can be no confusion between the two legal senses attaching to the German word ‘Recht’ which has made it necessary to coin the two technical terms ‘objektives’ and ‘subjektives Recht.’” For in the English language ”the former is ‘law’, the latter ‘a right.’” In fact, as Lawson went on to explain, the notion of a “subjective right” in the civilian systems is not quite the same as “right” in the English system, in that as far as English lawyers are concerned “the term ‘right’ has no metaphysical significance.” Yet Professor Lawson suggested at one point in his report that although in America one speaks of “interests” rather than rights, the two terms are synonymous; and the association of rights with interests has also led one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectify It is the purpose of this article to return to this topic of the subjective right and English law in order to suggest that the association of le droit subjectif with “protected interest” ought to be treated with caution.

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