Conflict of law 1921–1971 the way ahead

1972 ◽  
Vol 31 (1) ◽  
pp. 67-120 ◽  
Author(s):  
K. Lipstein
Keyword(s):  
General Principle ◽  
Legal Basis ◽  
Conflict Of Laws ◽  
Sixth Edition ◽  
Foreign Law ◽  
Long Time ◽  
English Law ◽  
The Law ◽  
Conflict Of Law ◽  
The Way

(1) Legal BasisWhen the first issue of the Cambridge Law Journal appeared in 1921, the English rules of the conflict of laws were those stated and reformulated by Dicey and by the editors of Westlake and Foote. Their progress between 1858 and 1912 had been charted by Dicey himself in a survey published in 1912. The legal basis for the application of foreign law in England was and remained Lord Mansfield's pronouncement in Holman v. Johnson: “Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances … the law of the country where the cause of action arose shall govern.” Dicey never waivered in his adherence to this rule of English law, but he supplemented it with an argument drawn from the doctrine of acquired rights which bedevilled English lawyers for a long time, until in 1949 the editors of the sixth edition of Dicey took what they believed to be a bold, but substantially honest, step by restricting the concept to its proper boundaries and thus by depriving it of its capacity to serve as a general principle of the Conflict of Laws.

The Lex Fori

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.

scholarly journals Niejednoznaczne podstawy stosowania przepisów wymuszających swoje zastosowanie (przepisów koniecznego zastosowania)

2019 ◽  
Vol 24 ◽  
pp. 169-187 ◽  
Author(s):  
Piotr Rodziewicz
Keyword(s):  
Legal Basis ◽  
Conflict Of Laws ◽  
Mandatory Rule ◽  
Mandatory Rules ◽  
Substantive Law ◽  
Legal Grounds ◽  
Conflict Of Law ◽  
Second Degree

The article raises issues concerning legal basis for the application of the overriding mandatory rules. In the Polish doctrine there are two opposing concepts in terms of explanation of the legal grounds for application of overriding mandatory rules. Both theories do not have a universal dimension, in the sense that they do not sufficiently explain the basis for the application of domestic as well as foreign overriding mandatory rules, being part of lex causae or coming from a third state. The article presents arguments for and against the possibility of deriving the legal grounds for application of the overriding mandatory rules, with reference to submissions made to that effect in literature. The author makes also an attempt to formulate a concept complementary to the concept of an integrated conflict-of-law rule with the substantive law rule, boiling down to the assumption that the basis for application of overriding mandatory rule is a second degree conflict of laws rule allowing to apply a first degree conflict of laws rule integrated with the substantive rule.

Redemption of Security Interests under Israel Law

1975 ◽  
Vol 10 (1) ◽  
pp. 81-101 ◽  
Author(s):  
Joshua Weisman
Keyword(s):  
Supreme Court ◽  
The Body ◽  
Supreme Court Justice ◽  
Secured Transactions ◽  
English Law ◽  
The Law ◽  
The Right ◽  
The Way

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

Which law determines the confidentiality of commercial arbitration?

2019 ◽  
Vol 35 (4) ◽  
pp. 391-399
Author(s):  
Philip Clifford ◽  
Eleanor Scogings
Keyword(s):  
Legal Basis ◽  
Commercial Arbitration ◽  
English Law ◽  
The Law

Abstract Commercial arbitration taking place in England is commonly believed to be confidential, and this is often presented as an advantage over court litigation (which is generally not confidential). However, absent express provision, the precise extent of any confidentiality is a mystery to many and its legal basis, beyond being an implication as a matter of English law, remains unclear. In particular, what is the trigger for the implication: the venue for the arbitration, the seat of the arbitration or the law governing the arbitration agreement? This article addresses these questions.

THE EFFECT OF ROME II ON NATIONAL PROCEDURAL LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 37-40 ◽  
Author(s):  
Joshua Folkard
Keyword(s):  
Conflict Of Laws ◽  
Applicable Law ◽  
Procedural Law ◽  
Foreign Law ◽  
Procedural Autonomy ◽  
The Law ◽  
Council Regulation ◽  
Contractual Obligations ◽  
Definition Of ◽  
Court Of Appeal

AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.

scholarly journals The Common Law Choice of Law Rules for Resulting and Constructive Trusts

2005 ◽  
Vol 54 (4) ◽  
pp. 855-883 ◽  
Author(s):  
Adeline Chong
Keyword(s):  
Common Law ◽  
Hague Convention ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Common ◽  
The Hague ◽  
English Law ◽  
The Law ◽  
The Hague Convention ◽  
Rules Set

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

scholarly journals OF IMPLICATION, INSINUATION AND INCITEMENT R v Jones [2010] 3 All ER 1186 (CA)

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Shannon Hoctor ◽  
Samantha Krause
Keyword(s):  
South African ◽  
Common Law ◽  
English Law ◽  
The Law ◽  
The Way

Can the crime of incitement be committed by insinuation? Can a conversation about growing tomatoes by implication actually be aconversation about the crime of producing cannabis? These are the questions which arise from the recent English case of R v Jones ([2010] 3 All ER 1186 (CA)). Although the English law relating to the way in which encouraging crime is criminalised has recently changed, the similarities between the previous (common-law) position in England (which was the law to be applied in Jones) and the current South African law make for a useful comparison between these systems, and it is to this that we now turn.

Majetkové poměry manželů – unifikace kolizního práva v rámci Evropské unie

2021 ◽  
Author(s):  
Lucie Zavadilová
Keyword(s):  
Private International Law ◽  
Foreign Law ◽  
Marital Property ◽  
The Subject ◽  
General Part ◽  
The Law ◽  
Property Regimes ◽  
The Eu ◽  
Conflict Of Law

The monograph deals with the conflict-of-law regulation of matrimonial property regimes having cross-border implications and the determination of the law applicable from the perspective of Czech courts. It focuses on both the regional unification of the conflict-of-law rules adopted within the EU and the national conflict-of-law rules. The subject matter of the research constitute selected institutes of the general part of private international law and their impact on the application of the relevant conflict-of-law rules in matters of matrimonial property regimes and the law applicable. The publication also covers the topic of the treatment of foreign law as the law applicable in proceedings related to the marital property division.

Procedure

2019 ◽  
pp. 225-238
Author(s):  
V.C. Govindaraj
Keyword(s):  
The Other ◽  
Remedial Measures ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
Foreign Law ◽  
The Law ◽  
Substantive Law

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

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