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

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 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.

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.

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

Obiter ◽  
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.

scholarly journals PUBLIC POLICY AND ITS ROLE IN CONTEMPORARY CIRCUMSTANCES

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
Valerija Šaula
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Contemporary World ◽  
Foreign Law ◽  
Insurmountable Obstacle

The paper deals with the issue of a public policy, predominantlyas an instrument in the area of Private International Law, though it can be usedin other fields of law. Describing the origin and a role of a public policy as aprotecting mechanism in the process of application of foreign law, applicableunder conflict of laws rules, in the process of recognition of foreign judgmentsand arbitral awards, as well as a mechanism for refusing to provide internationallegal assistance, the author contemplates about the role and place of thisinstitute in contemporary world, when the differences between the national legalsystems rarely can be seen as insurmountable obstacle for their application.

scholarly journals Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

2017 ◽  
pp. 80-87
Author(s):  
Indrani Kundu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Civil Union ◽  
Foreign Law ◽  
Marriage Laws ◽  
The Difference ◽  
Domestic Law ◽  
Legal Procedures

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 63 Paraguay: Paraguayan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Rodríguez José Antonio Moreno
Keyword(s):  
Latin America ◽  
Member State ◽  
International Law ◽  
International Institute ◽  
Private International Law ◽  
State Law ◽  
Conflict Of Laws ◽  
Commercial Code ◽  
The World ◽  
The Hague

This chapter highlights Paraguayan perspectives on the Hague Principles. Paraguay does not have a law dealing comprehensively and organically with Private International Law. The Civil and Commercial Code of 1987 contains the basic regulation on conflict of laws, and other provisions on the field can be found scattered in several special laws dealing with specific matters. Paraguay adhered, as a Member State, to the Hague Conference on Private International Law via Law 2555 of 2005. It is the first country in the world to legislate on international contracts heavily influenced by the Hague Principles. The Paraguayan law on international contracts drawn upon the Hague Principles openly allows the application of non-State law, and the International Institute for the Unification of Private Law (UNIDROIT) Principles clearly qualify as such.

Hague Conventions on Private International Law

2019 ◽  
pp. 239-272
Author(s):  
V.C. Govindaraj
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Active Member ◽  
Private International Law ◽  
Conflict Of Laws ◽  
World Community ◽  
Child Abduction ◽  
The World ◽  
The Hague ◽  
The Law

The world has to acknowledge the contribution the Hague Conference on Private International Law has hitherto made and continues to make in its endeavour to obtain from the world community approval and acceptance of the outcome of its efforts to unify rules of conflict of laws. India has become an active member of the Hague Conference. This chapter discusses the recognition of decrees of divorces and judicial separation and maintenance obligations; child custody and child abduction; the law relating to succession; the law relating to service of summons abroad; Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 1961; and Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, 1970.

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.

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