Public Policy in the Cayman Islands: Driving a Cart and (Unruly) Horses Through the Recognition Legislation

2001 ◽  
Vol 50 (1) ◽  
pp. 133-143
Author(s):  
Mitchell C Davies
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Direct Result ◽  
Private International Law ◽  
Cayman Islands ◽  
Choice Of Law ◽  
Applicable Law ◽  
Safety Mechanism ◽  
Foreign Law ◽  
English Law

Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4

Rule and Reason in the Common Law of Foreign Judgments

1999 ◽  
Vol 12 (2) ◽  
pp. 193-221
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Public Policy ◽  
Procedural Justice ◽  
Common Law ◽  
Minimal Level ◽  
Choice Of Law ◽  
The Public ◽  
Natural Justice ◽  
Foreign Law ◽  
The Common ◽  
Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

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.

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.

Torts in Private International Law: A New Statutory Framework

1996 ◽  
Vol 45 (4) ◽  
pp. 888-902 ◽  
Author(s):  
C. G. J. Morse
Keyword(s):  
International Law ◽  
Common Law ◽  
General Rule ◽  
Private International Law ◽  
Choice Of Law ◽  
Applicable Law ◽  
The Common ◽  
The Law

Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

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

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 38 Taiwan: Taiwanese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Tsai Hua-Kai
Keyword(s):  
Public Policy ◽  
International Law ◽  
Primary Source ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Hague ◽  
Set Up ◽  
Domestic Law

This chapter highlights Taiwanese perspectives on the Hague Principles. The Act Governing the Choice of Law in Civil Matters Involving Foreign Elements is the primary source of choice of law rules in Taiwan’s private international law (Taiwanese PIL Act). Party autonomy is set up as a prioritized connecting factor for the choice of law rules on contracts under the Taiwanese PIL Act. Due to the fact that Taiwan is not a Member State to most of the international organizations such as the Hague Conference on Private International Law, the source of Taiwan’s private international law is mainly domestic law. Being a non-binding instrument, the Hague Principles can be taken into consideration in Taiwan as an informal source of choice of law rules on contracts. However, the Hague Principles do not provide for rules determining the applicable law in the absence of the parties’ choice. Article 20 of the Taiwanese PIL Act is, in this respect, more comprehensive. Nonetheless, the Hague Principles may be used to interpret, supplement, and further develop rules only to Article 20(1) concerning party autonomy and the limitation on that autonomy such as public policy.

Brexit and Private International Law

2020 ◽  
Author(s):  
Kristina Salibová
Keyword(s):  
European Union ◽  
Transition Period ◽  
Private International Law ◽  
The European Union ◽  
Applicable Law ◽  
The United Kingdom ◽  
English Law ◽  
Energy Community ◽  
The Impact

My contribution deals with the issue concerning the question arising on the applicable law in and after the transition period set in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The aim of this contribution is to analyze how the English and European laws simultaneously influence one another. This analyzation will lead to the prognosis of the impact Brexit will have on the applicable English law before English courts and the courts of the states of the European Union. The main key question is the role of lex fori in English law. Will English law tend to return to common law rules post-Brexit, and prefer the lex fori?

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 14 Ethiopia: Ethiopian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gebremeskel Fekadu Petros
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Subject ◽  
The Hague ◽  
Federal Supreme

This chapter reflects on Ethiopian perspectives on the Hague Principles. Ethiopia does not have a codified law regulating matters of private international law, nor is there detailed case law from which one could derive key principles of the subject. While the shortage of private international law in Ethiopia is evident, the problem is most severe in the area of applicable law. In relation to party autonomy in choice of law, the Federal Supreme Court’s Cassation Division has handed down some interesting decisions, and these indeed have the force of law in Ethiopia. Nevertheless, the approach of the Ethiopian courts in respect of party autonomy is not very developed and clear, including in the field of international commercial contracts. While it would be prudent for Ethiopian courts to refer to the Hague Principles as persuasive authority, this requires awareness of the existence of the Hague Principles. In the long term, the Hague Principles will surely find their way into Ethiopian law.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 22 Dubai International Financial Centre: DIFC Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elrifai Silke Noa
Keyword(s):  
United Arab Emirates ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
Federal Level ◽  
Applicable Law ◽  
Financial Centre ◽  
The Hague ◽  
Contractual Obligations

This chapter describes the Dubai International Financial Centre (DIFC) perspectives on the Hague Principles. Whereas the DIFC is bound by international treaties ratified by the United Arab Emirates (UAE) on a federal level, the DIFC’s domestic sources of private international law are laid down in several statutory enactments and, as a common law jurisdiction, also case law. The most important rules on choice of law in international contracts are codified in the DIFC Law No 10 of 2005 (the DIFC Law Application Law), which govern the law applicable to contractual obligations. It sets out clearly and succinctly the most important applicable law rules, which respect the parties’ autonomy to choose the applicable law. Although Article 30(1) of the DIFC Court Law clearly instructs the DIFC Courts what law they must apply, Article 30(2) authorizes the DIFC Courts to ‘consider decisions made in other jurisdictions for the purpose of making its decision’. Accordingly, so far as the Hague Principles have been referenced in decisions in other jurisdictions, the Court may also refer to them.

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