Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 41 Australia: Australian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Marshall Brooke
Keyword(s):  
Common Law ◽  
Medium Term ◽  
Modal Choice ◽  
Choice Of Law ◽  
Scope Of Application ◽  
The Common ◽  
The Hague ◽  
The Law

This chapter analyses the common law choice-of-law rules that determine the law applicable to international and intra-national commercial contracts in Australia. It compares those rules with the Hague Principles and evaluates the extent to which the Principles offer an improvement. The chapter demonstrates that Australia’s core choice-of-law rule for contract, which gives effect to the parties’ choices, is well-established. However, its ‘modal choice of law rules’ and rules that determine the scope of application of the chosen law are incomplete and, in several respects, ambiguous. Adoption of the Principles’ approach to assignment and renvoi, in particular, would redress significant uncertainties in the current law. The Australian Commonwealth government’s 2016 proposal to implement the Principles, via legislation, has since stagnated. It follows that incremental judicial development of the common law, by reference to some of the Principles’ solutions, is the most realistic prospect in the medium term.

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.

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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 23 Hong Kong: Hong Kong Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Reyes Anselmo
Keyword(s):  
Hong Kong ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
English Court ◽  
Choice Of Law ◽  
The Hague ◽  
The Law

This chapter explores Hong Kong perspectives on the Hague Principles. Hong Kong has no enacted code of private international law rules. In relation to contracts dealing with commercial matters, the choice of law principles of Hong Kong law are largely to be found at common law. Decisions of the English court, in particular, are often cited in Hong Kong as exemplifying the law on a given question. To a lesser degree, principles may be found in statute. While Hong Kong judges must look to case law to discern relevant choice of law principles, nothing prevents them from also having regard to the Hague Principles and holding that one or more articles therein accurately reflect Hong Kong law. Indeed, articles of the Hague Principles can be referred to by Hong Kong judges as accurate statements of present day Hong Kong law, as foundations for the refinement of existing common law rules, or as indications of how Hong Kong choice of law principles may be extended to deal with novel situations.

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.

Choice of Law Methods in the Private International Law of Contract

1981 ◽  
Vol 18 ◽  
pp. 161-200
Author(s):  
Joost Blom
Keyword(s):  
United States ◽  
International Law ◽  
Common Law ◽  
The United States ◽  
Private International Law ◽  
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.

Part 2 National and Regional Reports, Part 2.6 North America: Coordinated by Geneviève Saumier, 68 United States of America: American Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Symeonides Symeon C ◽  
Cohen Neil B
Keyword(s):  
Common Law ◽  
State Level ◽  
Active Role ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Commercial Code ◽  
State Statutes ◽  
American Law ◽  
The Common ◽  
The Hague

This chapter focuses on American perspectives on the Hague Principles. At the state level, Louisiana and Oregon have enacted comprehensive choice of law codifications, which strongly endorse party autonomy. Many other states have enacted statutory provisions that affect party autonomy. At one end of the spectrum, there are provisions that prohibit or restrict outbound choice of law clauses in certain contracts that have enumerated contacts with the enacting state. At the other end of the spectrum, there are statutes designed to ensure enforcement of inbound choice of law clauses in certain commercial contracts with high-dollar value, even in the absence of any connection with the enacting state. Despite the multiplicity of state statutes, many of which pre-empt a judicial choice of law or obviate the need for it, the bulk of American conflicts law for matters other than those governed by the Uniform Commercial Code is found in judicial decisions. In keeping with the common law tradition, American courts play an active role in the development of the law, both in general and regarding party autonomy in particular. One hopes that American courts will take into account the Hague Principles, if only for answering those questions, as few as they may be, whose answer is unclear under American law.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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