Corporations

2019 ◽  
pp. 334-352
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
The United Kingdom ◽  
Insolvency Regulation ◽  
Principal Effect ◽  
European Regulations ◽  
English Law ◽  
Insolvency Proceedings

This chapter discusses the private international law of insolvency and bankruptcy. Prior to Exit Day, the private international law of insolvency and bankruptcy was covered in part by two European Regulations: the Insolvency Regulation 1346/2000, and the recast Insolvency Regulation 2015/848. According to the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019 No 146, a fragment of Regulation 2015/848 is retained as English law, but otherwise it is not retained as English law. The principal effect of this is that the court will continue to have jurisdiction to open insolvency proceedings when the debtor’s centre of main interests is in the United Kingdom. Otherwise Part 1 of the Schedule to SI 2019 No 146 provides that the recast Insolvency Regulation shall not have effect in the United Kingdom. Consequential amendment is made to secondary legislation. Transitional provisions are made to provide for the continued application of the Regulations after Exit Day in the case of insolvency proceedings opened before Exit Day.

THE CISG AND THE UNITED KINGDOM—EXPLORING COHERENCY AND PRIVATE INTERNATIONAL LAW

2018 ◽  
Vol 67 (3) ◽  
pp. 607-641
Author(s):  
Benjamin Hayward ◽  
Bruno Zeller ◽  
Camilla Baasch Andersen
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
The United Kingdom ◽  
Industrialized Nations ◽  
English Law ◽  
The Uk

AbstractThe United Kingdom remains one of the world's last industrialized nations not to have adopted the CISG. The UK CISG debate has endured for decades, with existing analysis largely focusing on competition, assessing the relative merits of the CISG and English law. This article's analysis is complementary; focusing instead on coherence, and the private international law implications of UK accession. This article assesses contractual interpretation, and commodity sales, within an overarching private international law framework. Recognizing the necessity of existing competitive analyses, it makes the case for UK CISG accession on the basis of its complementary coherency perspective.

scholarly journals Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

2013 ◽  
Vol 32 (1) ◽  
pp. 67-74
Author(s):  
Katarzyna Bagan-Kurluta
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Case Law ◽  
Functional Method ◽  
Internal Source ◽  
Private International Law ◽  
Uniform Approach ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

Non-Contractual Obligations

2019 ◽  
pp. 244-277
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
Eu Law ◽  
Eu Legislation ◽  
The United Kingdom ◽  
The Law ◽  
Contractual Obligations

This chapter discusses the law on non-contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome II Regulation, Regulation 864/2007, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome II Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome II Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

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.

Introduction

2019 ◽  
pp. 1-42
Author(s):  
Adrian Briggs
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Legal Framework ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Common ◽  
Law And Legislation

This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.

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.

Persons

2019 ◽  
pp. 305-333
Author(s):  
Adrian Briggs
Keyword(s):  
Member State ◽  
International Law ◽  
State Court ◽  
Private International Law ◽  
Parental Responsibility ◽  
European Regulations ◽  
English Law ◽  
The Law ◽  
Full Force

This chapter discusses the law of persons. Prior to Exit Day, the private international law of matrimonial causes, parental responsibility, and maintenance was covered in part by two European Regulations: the Brussels II Regulation, Regulation (EC) 2201/2003, and the Maintenance Regulation, Regulation (EC) 4/2009. According to the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 519, regulations 3 and 4, these two European Regulations will be revoked. Until Exit Day they are in full force and effect, but unless further legislative arrangements are made they will not apply to proceedings commenced before a English (or, where recognition is concerned, other Member State) court on or after Exit Day. SI 2019 No 519 makes consequential alterations to English law, which will come into effect on Exit Day.

scholarly journals Konsekwencje brexitu w dziedzinie prawa prywatnego międzynarodowego

2020 ◽  
pp. 138-158
Author(s):  
Sylwia Majkowska-Szulc
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Member State ◽  
International Law ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Future ◽  
The Uk ◽  
The Eu

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

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