Part V Financial Wrongdoing and Private International Law, 15 Knowing Receipt

Applicable Law ◽

The Common ◽

The Law ◽

Real Scenario ◽

This chapter deals with issues related to knowing receipt. For an equitable claim for knowing receipt to succeed, the claimant must establish the disposal of his money in breach of fiduciary duty and, secondly, the beneficial receipt of that money by the defendant which is traceable as the claimant’s money where, thirdly, the defendant had the requisite degree of knowledge of the breach of fiduciary duty. This claim has been said to be the equitable counterpart of the common law action for money had and received. The chapter then looks at a real scenario of a case of knowing receipt. It also examines the relevant jurisdiction and applicable law, including the law applicable to the issue of liability for knowing receipt.

Torts in Private International Law: A New Statutory Framework

International and Comparative Law Quarterly ◽

10.1017/s0020589300059741 ◽

1996 ◽

Vol 45 (4) ◽

pp. 888-902 ◽

Cited By ~ 4

Author(s):

C. G. J. Morse

Keyword(s):

International Law ◽

Common Law ◽

General Rule ◽

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.

Part V Financial Wrongdoing and Private International Law, 18 Conspiracy

10.1093/law/9780198716587.003.0018 ◽

2017 ◽

Author(s):

Douglas Zachary ◽

Bodnar Andrew

Keyword(s):

Member State ◽

International Law ◽

Applicable Law ◽

Real Scenario ◽

This chapter analyses the situation of conspiracy. A claim in tort for unlawful means conspiracy requires the claimant to establish that, firstly, he has suffered a loss, secondly, that it was as a result of unlawful action, which was thirdly, taken pursuant to a combination or agreement between the defendant and another person or persons, fourthly, to injure the claimant by unlawful means. The intention to injure does not have to be the sole or predominant purpose of the defendant’s actions. The chapter then looks at a real scenario of a case of conspiracy. It also looks at the relevant jurisdiction and applicable law, including cases where the defendants are domiciled in England, in another Member State, or in a non-Member State and cases where the defendants are domiciled in different locations from each other.

Part V Financial Wrongdoing and Private International Law, 16 Dishonest Assistance

10.1093/law/9780198716587.003.0016 ◽

2017 ◽

Author(s):

Douglas Zachary ◽

Bodnar Andrew

Keyword(s):

International Law ◽

Critical Role ◽

Applicable Law ◽

State Of Mind ◽

Real Scenario ◽

This chapter deals with issues relating to dishonest assistance. To succeed with an equitable claim for dishonest assistance, the claimant must establish, firstly, the existence of a trust or fiduciary relationship, secondly, which has been breached, thirdly, with the assistance of the defendant, and fourthly, in circumstances where the defendant has been dishonest. The claim for dishonest assistance is not a restitutionary claim; it is a form of accessory liability based on fault, and hence the defendant’s state of mind assumes a critical role in the cause of action. If the defendant is liable for dishonest assistance, then he is personally liable to account to the claimant and hence the remedy is personal and not proprietary. Although described as an equitable claim, and notwithstanding that the quantum of damages is usually calculated by reference to the value of the breach of trust, the remedy for dishonest assistance is damages. The chapter then looks at a real scenario of a case of dishonest assistance. It also examines the relevant jurisdiction and applicable law, including the characterization of the issue of liability for dishonest assistance.

Part V Financial Wrongdoing and Private International Law, 14 Money Had and Received

10.1093/law/9780198716587.003.0014 ◽

2017 ◽

Author(s):

Douglas Zachary ◽

Bodnar Andrew

Keyword(s):

International Law ◽

Common Law ◽

Strict Liability ◽

Banking System ◽

International Banking ◽

Unjust Enrichment ◽

The Common ◽

This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.

Property

The Conflict of Laws ◽

10.1093/oso/9780198838500.003.0007 ◽

2019 ◽

pp. 278-304

Author(s):

Adrian Briggs

Keyword(s):

United Kingdom ◽

International Law ◽

Common Law ◽

Foreign Country ◽

The United Kingdom ◽

The Common ◽

The Law ◽

The Eu

This chapter discusses English private international law in terms of property. The private international law of property covers immovable and movable property, tangible and intangible property, as well as intellectual and family property. In the United Kingdom, most of the conflicts rules are established by the common law. Although the EU intervened to harmonize private international law in the fields of succession to property and matrimonial property, those Regulations did not extend to the United Kingdom. Where the conflicts rules are found in the common law, a court may be entitled to apply the law selected in its renvoi sense: that is to say, to apply the law (including any conflicts rules) as it would be applied by a judge sitting in the foreign country and hearing the case himself.

Capacity to Create a Trust: The Onshore Problem, and the Offshore Solutions

Edinburgh Law Review ◽

10.3366/elr.2002.6.2.176 ◽

2002 ◽

Vol 6 (2) ◽

pp. 176-198 ◽

Cited By ~ 1

Author(s):

Paul Matthews

Keyword(s):

International Law ◽

Common Law ◽

Cayman Islands ◽

Family Wealth ◽

The Common ◽

The Law ◽

Special Rules ◽

Personal Law

The Common Law rules of private international law on the capacity of a person to create a trust are peculiarly difficult to ascertain. It is submitted that, despite the claims of other candidates (such as the proper law of the trust, the law of the situs of the trust assets, and even the settlor's nationality), the law of the settlor's domicile should govern capacity of the settlor (i) to make a contract to create a trust, (ii) to transfer ownership of moveable property to the trustee, and (in) to impose the trust obligation on the trustee. Capacity of the settlor to transfer immovables to the trustee is, however, governed by the lex situs. Some offshore trust jurisdictions have enacted special rules relating to capacity to create a trust. Two main models may be distinguished, that of Jersey and that of the Cayman Islands. These rules were mainly designed to deal with a quite different problem, namely that of the settlor whose personal law includes rules on the protection of family wealth, such as so-called “forced heirship”". Whether the offshore rules actually succeed in avoiding the problem is, however, open to doubt in some cases.

Choice of Law Methods in the Private International Law of Contract

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800012819 ◽

1981 ◽

Vol 18 ◽

pp. 161-200

Author(s):

Joost Blom

Keyword(s):

United States ◽

International Law ◽

Common Law ◽

The United States ◽

Legal Systems ◽

Choice Of Law ◽

The Common ◽

The Law ◽

Contractual Obligations

This article examines the choice of law methods developed in four legal systems for problems relating to the substantial or essential validity of contracts. The complicated questions of formation and capacity have had to be left aside. The first two parts of this article discussed the choice of law methods used by courts in France, Germany, and the United States. This concluding part deals with the law in England and the common law jurisdictions in Canada, and also, by way of epilogue, with the recently completed European Communities Convention on the law applicable to contractual obligations. Finally, some general conclusions will be offered about the patterns of law that have emerged in the course of this survey.

Forum Non Conveniens in Australia: A Comparative Analysis

Common Law World Review ◽

10.1350/clwr.2009.38.3.0188 ◽

2009 ◽

Vol 38 (3) ◽

pp. 207-244 ◽

Cited By ~ 1

Author(s):

Anthony Gray

Keyword(s):

Comparative Analysis ◽

International Law ◽

Common 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 V Financial Wrongdoing and Private International Law, 17 Deceit

10.1093/law/9780198716587.003.0017 ◽

2017 ◽

Cited By ~ 1

Author(s):

Douglas Zachary ◽

Bodnar Andrew

Keyword(s):

Member State ◽

International Law ◽

Applicable Law ◽

Real Scenario ◽

This chapter considers issues connected to deceit. For a claim in tort for deceit, the claimant must establish that, firstly, the defendant made a representation which was false, secondly, knowingly or recklessly and, thirdly, the claimant acted upon that representation. If the claim in deceit is established, the defendant is liable for all consequential loss flowing from the deceit regardless of whether the claimant was negligent in failing to discover the falsity of the representation. The chapter then looks at a real scenario of a case of deceitful behaviour. It also examines the relevant jurisdiction and applicable law, including cases where the defendant is domiciled in England, in another Member State, or in a non-Member State.

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

Choice of Law in International Commercial Contracts ◽

10.1093/law/9780198840107.003.0042 ◽

2021 ◽

Author(s):

Hook Maria

Keyword(s):

New Zealand ◽

International Law ◽

General Position ◽

Common Law ◽

Case 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.