Evasion of Law and Mandatory Rules in Private International Law

1990 ◽  
Vol 49 (1) ◽  
pp. 44-62 ◽  
Author(s):  
J. J. Fawcett
Keyword(s):  
International Law ◽  
Private International Law ◽  
Underlying Theory ◽  
Mandatory Rules ◽  
English Law ◽  
The Law ◽  
Evasion Of Law

It has often been asserted that English private international law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

Persons

2019 ◽  
pp. 305-333
Author(s):  
Adrian Briggs
Keyword(s):  
Member State ◽  
International Law ◽  
State Court ◽  
Private International Law ◽  
Parental Responsibility ◽  
European Regulations ◽  
English Law ◽  
The Law ◽  
Full Force

This chapter discusses the law of persons. Prior to Exit Day, the private international law of matrimonial causes, parental responsibility, and maintenance was covered in part by two European Regulations: the Brussels II Regulation, Regulation (EC) 2201/2003, and the Maintenance Regulation, Regulation (EC) 4/2009. According to the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 519, regulations 3 and 4, these two European Regulations will be revoked. Until Exit Day they are in full force and effect, but unless further legislative arrangements are made they will not apply to proceedings commenced before a English (or, where recognition is concerned, other Member State) court on or after Exit Day. SI 2019 No 519 makes consequential alterations to English law, which will come into effect on Exit Day.

Posted Workers in Europe from a Private International Law Perspective

2011 ◽  
Vol 13 ◽  
pp. 219-244
Author(s):  
Louise Merrett
Keyword(s):  
International Law ◽  
Employment Law ◽  
Private International Law ◽  
Mandatory Rules ◽  
The Law ◽  
Definition Of ◽  
Employment Rights ◽  
Rome I

Abstract Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

10 Posted Workers in Europe from a Private International Law Perspective

2011 ◽  
Vol 13 ◽  
pp. 219-244
Author(s):  
Louise Merrett
Keyword(s):  
International Law ◽  
Employment Law ◽  
Private International Law ◽  
Mandatory Rules ◽  
The Law ◽  
Definition Of ◽  
Employment Rights ◽  
Rome I

AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

scholarly journals Wpływ przepisów wymuszających swoje zastosowanie na rozstrzyganie spraw spadkowych pod rządami rozporządzenia Parlamentu Europejskiego i Rady (UE) Nr 650/2012

2019 ◽  
Vol 25 ◽  
pp. 43-65 ◽  
Author(s):  
Łukasz Żarnowiec
Keyword(s):  
International Law ◽  
Point Of View ◽  
Private International Law ◽  
The European Union ◽  
Original Solution ◽  
New Approach ◽  
Applicable Law ◽  
Mandatory Rules ◽  
The Law ◽  
Special Rules

Since August 17, 2015 the courts of the Member States of the European Union apply the conflict-of-laws rules adopted in the EU Succession Regulation (EU) in succession matters. From the Polish point of view, this constitutes not only the change of the rules applied for the purposes of determining jurisdiction and the applicable law, but also a new approach to the overriding mandatory provisions. Contrary to other European instruments of private international law, the Succession Regulation neither uses the term “overriding mandatory provisions”, nor defines its meaning. Nevertheless, in Article 30 the Regulation provides for application — irrespective of the law applicable to the succession under its conflict rules — of the special rules of the State, where certain immovable property, enterprises or other special categories of assets are located, and which — for economic, family or social considerations — impose restrictions concerning or affecting the succession in respect of those assets, in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession. The interpretation of this provision cause difficulties. It is not clear whether the concept of the special provisions embodied in Article 30 refers to the concept of overriding mandatory rules, well known in the European private international law, or whether it constitutes an original solution. Another controversial issue discussed in the paper is the relevance of the mandatory rules of the forum or the third State other than those mentioned in Article 30.

Part VI The Law of Property, 38 Trusts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Mandatory Rules ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Uk

This chapter examines the private international law rules governing trusts which are laid down in the Recognition of Trusts Act 1987 and its scheduled Convention. The Recognition of Trusts Act was passed in 1987 to enable the UK to give effect to the Convention, formally concluded in 1985 by the Hague Conference on Private International Law, on the Law Applicable to Trusts and on their Recognition. The chapter begins with a discussion of some preliminary issues, such as the definition of a trust, types of trust that fall within the 1987 Act, validity of the instrument of creation of the trust, and transfer of trust assets. It then considers the specific rules governing choice of law and the recognition of trusts, along with mandatory rules and public policy. It also looks at the variation of trusts and marriage settlements, citing the relevant provisions of the Variation of Trusts Act 1958.

Part II Preliminary Topics, 8 Exclusion of Foreign Law

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Civil Law ◽  
Public Welfare ◽  
Private International Law ◽  
The Public ◽  
Foreign Law ◽  
Mandatory Rules ◽  
The Law ◽  
Ordre Public

This chapter examines issues surrounding the exclusion, or non-enforcement, of foreign law. There are circumstances when the law of the forum must be preferred to the foreign law that would normally be applicable to the case. An outstanding example of this is the civil law doctrine of ordre public under which any domestic rule designed to protect the public welfare must prevail over an inconsistent foreign rule. This chapter discusses four cases in which foreign law will not be enforced, either directly or indirectly, by English courts: foreign revenue, penal and other public laws; foreign expropriatory legislation; foreign laws repugnant to English public policy; and the mandatory rules of the forum. It also describes the effect of European private international law on the rule against the enforcement of foreign revenue, penal and other public laws in England.

Posted Workers in Europe from a Private International Law Perspective

2011 ◽  
Vol 13 ◽  
pp. 219-244 ◽  
Author(s):  
Louise Merrett
Keyword(s):  
International Law ◽  
Employment Law ◽  
Private International Law ◽  
Mandatory Rules ◽  
The Law ◽  
Definition Of ◽  
Employment Rights ◽  
Rome I

AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

Private International Law

2018 ◽  
Author(s):  
V.C. Govindaraj
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Application Of Law ◽  
Cross Border ◽  
Corrective Measures ◽  
The Supreme Court ◽  
The Law

In deciding cases of private international law or conflict of laws, as it is widely known, judges of the Supreme Court in India generally consult the works of renowned English jurists like Dicey and Cheshire. This volume argues that our country should have its own system of resolving inter-territorial issues with cross-border implications. The author critically analyses cases covering areas such as the law of obligations, the law of persons, the law of property, foreign judgments, and foreign arbitral awards. The author provides his perspectives on the application of law in each case. The idea is to find out where the judges went wrong in deciding cases of private international law, so that corrective measures can be taken in future to resolve disputes involving complex, extra-territorial issues.

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