scholarly journals NARROWING FOREIGN AFFAIRS NON-JUSTICIABILITY

2021 ◽  
Vol 70 (2) ◽  
pp. 505-527
Author(s):  
Marcus Teo
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Private Law ◽  
Private International Law ◽  
High Commissioner ◽  
The Law ◽  
The Uk

AbstractThe UK Supreme Court's decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law's framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.

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.

Civil Judicial Cooperation: A Scottish Experience

2019 ◽  
pp. 158-175
Author(s):  
Nicola Wisdahl
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Private International Law ◽  
Judicial Cooperation ◽  
European Area ◽  
The Uk ◽  
Near Future

This chapter presents an overview of the historical circumstances leading to a division of competence between “making” private international law in foreign affairs terms; and giving effect to (“doing”) private international law domestically. Drawing on this dichotomy, the chapter reflects on a Scottish experience of judicial cooperation in practice. Using an anthropological lens this chapter reflects on identifying the required “Other” for cooperation - a binary requiring some aspect of “foreignness” of another law. This is considered both in the context of the UK as a multi-jurisdictional state; and as part of a nascent field within attempts to create a European area of freedom, security and justice. These reflections provide a practical overview of an era which seems certain to see some change in the near future.

5. International law and environmental protection

2017 ◽  
Author(s):  
Stuart Bell ◽  
Donald McGillivray ◽  
Ole W. Pedersen ◽  
Emma Lees ◽  
Elen Stokes
Keyword(s):  
International Law ◽  
Environmental Protection ◽  
Environmental Law ◽  
Private International Law ◽  
Direct Impact ◽  
International Treaties ◽  
National Legislation ◽  
The Law ◽  
The Uk ◽  
Domestic Law

This chapter describes the development, scope, and application of international environmental law, which has expanded significantly since the late 1960s. The focus is on international treaties relating to environmental protection. The chapter is restricted to discussing public, rather than private, international law—that is, the law between states, rather than the conflict of legal systems. International law has often been regarded as something rather closer to international relations due to the fact that there is no single body with the power to make and enforce law against states, companies, or individuals effectively. In the UK, international law does not necessarily have a direct impact on domestic law or on individuals. Treaties need to be given effect to through national legislation and are concerned with the action of states, not individuals within states—with some notable exceptions, such as the law on war crimes.

scholarly journals Forum Non Conveniens in Australia: A Comparative Analysis

2009 ◽  
Vol 38 (3) ◽  
pp. 207-244 ◽  
Author(s):  
Anthony Gray
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
The Us ◽  
Forum Non Conveniens ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Uk

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications.

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.

scholarly journals KOLIZYJNOPRAWNA PROBLEMATYKA MAŁŻEŃSKICH STOSUNKÓW MAJĄTKOWYCH W ŚWIETLE PRZEPISÓW NOWEJ USTAWY O P.P.M. Z 2011 R.

2016 ◽  
Vol 15 (1) ◽  
pp. 77
Author(s):  
Łukasz Żarnowiec
Keyword(s):  
International Law ◽  
Third Parties ◽  
Legal Issues ◽  
Private Law ◽  
Private International Law ◽  
Freedom Of Choice ◽  
The Law ◽  
Property Regimes ◽  
Selection Of

Conflict of Legal Issues Regarding Matrimonial Property Regimes under the New Private International Law of 2011SummaryThe conflict-of-law method for the determination of the law applicable to matrimonial property regimes under the Polish InternationalPrivate Law Act of 1965 became obsolete and no longer came up tocurrent standards and needs, and therefore required thorough revision.The most important shortfalls of the previous regulation were theexclusion of freedom of choice of the law applicable to matrimonialproperty relations, the selection of criteria recognised as objectiveconnecting factors, the excessive privilege of lex fori, and the lack ofinstruments protecting third parties entering into legal relations witha married couple.Amendments in the above-mentioned scope were introduced by theInternational Private Law Act of February 4, 2011 (Ustawa z dnia 4 lutego 2011 r. – Prawo prywatne międzynarodowe), that came into forceon May 16, 2011. However, certain provisions of the new Act haveraised doubts. This paper presents them and tries to provide a criticalassessment.

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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